Citation Nr: 1742829 Decision Date: 09/27/17 Archive Date: 10/04/17 DOCKET NO. 10-31 291 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a bilateral lower leg disability other than peripheral neuropathy, to include as secondary to in-service herbicide exposure and service-connected diabetes mellitus. 2. Entitlement to an evaluation in excess of 30 percent for posttraumatic stress disorder (PTSD). 3. Entitlement to special monthly compensation based on a need for the regular aid and attendance of another person or being housebound. 4. Entitlement to specially adapted housing or a special home adaptation grant. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD T. Berry, Counsel INTRODUCTION The Veteran served on active duty form May 1967 to May 1969, including combat service in the Republic of Vietnam and his decorations include the Purple Heart Medal with Oak Leaf Cluster, the Bronze Star Medal with "V" device and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In February 2013, the Board issued a decision which denied the Veteran's claim for an increased evaluation for PTSD, and remanded the remaining issues on appeal for additional development. The Veteran timely appealed the Board's decision concerning his PTSD evaluation to the United States Court of Appeals for Veterans Claims (Court). Based on a December 2013 Joint Motion for Remand (Joint Motion), the Court issued a June 2014 Order remanding this matter for additional consideration. In June 2014, the Board issued a decision which again denied the Veteran's claim for an increased evaluation for PTSD. The Veteran timely appealed this decision to the Court. In May 2015, pursuant to a Joint Motion, the Court issued an Order remanding this matter back for additional consideration. In November 2015, the Board vacated the prior June 2014 Board decision in compliance with the May 2015 Joint Motion directives and remanded these matters to the RO for additional development. In this decision, the issue of entitlement to an increased rating for PTSD is addressed below. The remaining issues are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the appeal, the Veteran's PTSD has been manifested by occupational and social impairment due to panic attacks, sleep impairment, memory and disturbances in motivation and mood; however, the preponderance of the evidence shows that the disability is not productive of occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating of 50 percent for PTSD, but no higher, have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.130, Diagnostic Code (DC) 9411 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran seeks a higher rating for his PTSD, which is currently rated at 30 percent. Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's PTSD is currently evaluated under the General Rating Formula for Mental Disorders, 38 C.F.R. § 4.130, Diagnostic Code 9411. Notably, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV). Nevertheless, under the General Rating Formula, a 30 percent disability rating is appropriate when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. The criteria for a 50 percent disability rating requires occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. In evaluating the evidence, the Board also has considered various Global Assessment of Functioning (GAF) scores that clinicians have assigned. A GAF score is a scaled rating reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32). An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment. See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95 (March 31, 1995). A GAF of 41-50 indicates serious symptoms (e.g. suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). See DSM-IV; see 38 C.F.R. § 4.130. A GAF score of 51-60 indicates "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)." Id. A GAF score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." Id. A May 2007 VA mental health record shows that the Veteran was compliant with his psychiatric medications and was "doing much better." He was sleeping better and his memory was intact. Hygiene and grooming were fair. Speech and motor activity were normal. Behavior and attitude were good. His mood was mildly depressed with a full affect. No perceptual disturbances were reported. Thought content was clear and logical. Judgment and insight were good. A GAF score of 50 was assigned. In March 2008, the Veteran reported decreased motivation during the day despite being compliant with his medications. His PTSD symptoms were tolerable and improved. Hygiene and grooming were fair. Speech was normal and motor activity was slow. Behavior and attitude were good. Mood was euthymic with a full affect. No perceptual disturbances were reported. Thought process was logical and coherent. Thought content was clear and logical. Memory was intact. Judgment and insight were good. The Veteran denied suicidal ideation. A GAF score of 50 was assigned. In December 2008, the Veteran became a resident at the Dallas VAMC Transitional Care Unit (TCU). A mental health record indicates that he had been married for 42 years and that his wife was his best friend. He stated that his PTSD symptoms had increased since staying at the TCU, which he attributed to hearing other veterans talk about their war experiences. He had nightmares, startled easily, and avoided crowds. He always sat with his back to the wall. The Veteran's mood was euthymic and his affect was bright with appropriate moments of laughter. He was alert, oriented, pleasant, and cooperative. In January 2009, the Veteran reported feeling frustrated and disappointed because his legs were not getting better. He stated that he would "definitely" need psychology services if his symptoms worsened. He denied current symptoms of depression and suicidal/homicidal ideation. He reported having fleeting thoughts of suicide many times when at home. He felt useless and did not like to depend on his wife. The Veteran expressed his intention to quit smoking. In May 2009, the Veteran reported that he had been practicing his interpersonal skills at home in conversations with his wife. His wife had commented that he seemed more "human." He reported improved mood and sleep, although he still had nights when he could not sleep due to pain. He only smoked in the evenings when he was awakened from pain. The Veteran also reported being on alert for danger. However, he had gone to a crowded store recently and was able to buy groceries and enjoy being with his wife rather than getting anxious or agitated. His mood was euthymic, as evidenced by his laughing and joking. His questions reflected a high level of insight. There were no signs of suicidal/homicidal ideation. In June 2009, the Veteran reported occasional memory problems. He often had trouble fully attending to things because he was "listening for a sniper and watching the doors." He reported that he continued to struggle with feeling "weak" by talking about his problems, but had come to realize that many of his health and interpersonal difficulties were the result of avoiding and ignoring his feelings, and that he was happy to be working on these problems. He also reported that his mood had continued to improve and that he did not get as sad as he used to. In July 2009, the Veteran reported that he had learned the skill of perspective taking, and that this skill would help him have empathy for others and help keep his anger under control. In August 2009, the Veteran expressed his anticipation of being discharged the following month. He had smoked his last cigarette earlier that day. No mood disturbance was endorsed. The Veteran was scheduled for a VA examination for his PTSD in August 2009. He reported that his PTSD symptoms continued to be active. He endorsed daily intrusive memories, nightmares about once every two weeks, and flashbacks brought on by tall grass around his home. He could not stand in lines. He avoided having his back exposed when in a public place. He was strongly security focused and reported having no friends, avoiding crowds, being hypervigilant, startling easily, and having poor sleep patterns. The examiner noted that "[i]t does not appear that there has been a significant change" in the Veteran's PTSD symptoms since the May 2004 VA examination. The examiner noted that the Veteran's capacity for adjustment had changed, but attributed this to his declining physical health. The Veteran reported a stable home environment. The quality of his marriage was good. He had close relationships with immediate family members. He was not very socially active, and complained of being "significant[ly] hampered" by his medical conditions. Upon examination, the Veteran's grooming and hygiene were noted as fair. Eye contact was good. Psychomotor activity was within normal limits. His manner of interaction was somewhat irritable, but generally cooperative. His speech was somewhat mumbled, but he was verbal and well understood. Thought processes were clear, logical, goal directed, and coherent. Thought content was relevant and appropriate. There was no history of suicidal/homicidal ideation. He reportedly was "pretty moody." Attention and concentration skills were fair. Short-term memory appeared to be somewhat impaired as he recalled only one word after five minutes. He was able to recall two additional words (out of a total of three) with category prompts. He had difficulty spelling his first name in reverse. Abstract reasoning skills and social judgment were intact, and psychological insight appeared to be partial. Although the Veteran no longer worked, the examiner noted that any effect on occupational and social functioning was mild. The examiner also concluded that the Veteran's PTSD symptoms did not significantly limit activities of daily living. The examiner opined that the severity level of the Veteran's symptoms was moderate and assigned a GAF score of 55. He noted that the Veteran believed his PTSD warranted a higher rating principally based on the merits of his service and not on the level of disability. In November 2009, the Veteran reported that he was doing okay as long as he continued to take his medication. He still had nightmares once a week. The assessment was PTSD with depression, stable on current medications. In May 2014, it was noted that the Veteran was last seen in September 2013, but is now attending monthly PTSD groups on the first Wednesday of the month. He reported he is doing well on his current treatment and is taking medication. He stated his moved has improved, but he thinks about Vietnam all the time. He avoids social contact and stays around the house a lot. He stated that things bothers him like his memories. The Veteran denied any manic or psychotic symptoms, and suicidal or homicidal ideations. A May 2014 VA treatment record noted the Veteran actively participates in his monthly groups. A September 2016 treatment record shows the Veteran reported he is "alright." He continues to avoid social contact and stays around the house a lot. He has been eating and sleeping fairly well, with nightmares occurring rarely and not as intensely. He continued to deny any manic or psychotic symptoms, and suicidal or homicidal ideations. He also reported a very good relationship with his wife. A mental status evaluation showed the Veteran was cooperative, alert, and well groomed. He had good eye contact. There were no psychomotor abnormalities or involuntary movements noted. His speech was clear, with normal rate and volume. Mood was congruent with affect alright. His though processes were coherent and goal directed. The Veteran was most recently examined by VA in November 2016. At that time, the Veteran reported increased irritability and yelling at the family. The Veteran also reported he does not go to VA anymore because they made him mad. The symptoms noted by the Veteran include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and impaired impulse control, such as unprovoked irritability with periods of violence. Following a review of the lay and medical evidence, the Board concludes that the Veteran's PTSD most closely approximates the criteria for a 50 percent evaluation throughout the appeal. In reaching this determination, the Board finds that his PTSD has been manifested by occupational and social impairment due to panic attacks, sleep impairment, impair impulse control resulting in irritability, and the need for medication. The Board has also considered the Veteran's GAF scores. The Board notes the Veteran's lowest GAF score was 50, and consistently so for a significant period of time, which is indicative of serious symptoms. The Board notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed.Cir.2013). The Board further finds that the preponderance of the evidence is against entitlement to an evaluation in excess of 50 percent the criteria for a 70 percent rating under the General Rating Formula are not met. In this regard, the evidence does not show that the Veteran has occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. In fact, the Veteran has consistently denied the symptoms commonly associated with the higher 70 percent rating and notes that he has good relationships with family, especially his wife. A request for a total disability rating based on individual unemployability (TDIU) is not a separate claim for benefits but, rather is part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, there has been no suggestion that the Veteran's PTSD has caused him to be unable to work. ORDER Subject to the law and regulations governing payment of monetary benefits, a 50 percent rating for PTSD is granted. REMAND The Board finds that further evidentiary development is necessary before a decision can be reached on the merits of the remaining claims. By way of factual background, the Veteran seeks service connection for a bilateral lower leg disability other than peripheral neuropathy. The record establishes that the Veteran was treated for bilateral lower extremity ulcers and pain in January 2005, which developed after he sustained trauma to his shins. The wounds healed for the most part, but then became worse in August 2005. He was hospitalized and diagnosed with cellulitis. The wounds improved with daily care from November 2005 through January 2006, but then became worse again in February 2006 after the Veteran sustained blunt trauma to his shins. The ulcers resolved for a few months during 2007. In August 2008, the ulcers and pain recurred and required multiple hospital stays. During this time period, the Veteran was diagnosed with thrombotic vasculopathy, livedoid vasculopathy, and livedoid vasculitis. He was hospitalized in December 2009 for daily wound care and pain management, and was treated with wound care/debridement and IV antibiotics for cellulitis. An extensive work-up was conducted, to include dermatology, rheumatology, general surgery, hematology, and infectious disease. No cause for the Veteran's condition was ever identified. In August 2009, the Veteran underwent a VA arteries examination. The examiner reviewed the claims file and diagnosed livedoid vasculopathy, presently on aspirin and Plavix, and multiple chronic ulcerations in the lower extremities, presently on wound care treatment. He opined that the Veteran's diagnosis of vasculopathy "is less likely than not secondary to his diabetes mellitus." The examiner did not provide a rationale for this opinion. Furthermore, he did not consider the theory of direct service connection. The Veteran was next examined in January 2014. At that time, the VA examiner confirmed a diagnosis of livedoid vasculopathy. The VA examiner determined that there is no association between exposure to herbicides and the development of livedoid vasculopathy; therefore, it is not at least as likely as not that the Veteran's exposure to herbicides during active military service is related to the lower extremity vasculopathy. Further, the angiogram does not reveal any evidence of the kind of vascular disease that would be expected from diabetes mellitus; therefore, it is not at least as likely as not that the Veteran's service-connected diabetes caused or aggravated the vasculopathy. The Board finds that these VA examination reports are inadequate as the VA examiners both failed to provide sufficient rationale for the negative findings, as well as failing to fully address the theories of entitlement presented by the Veteran, namely, consideration of whether the Veteran's diagnosed livedoid vasculopathy may be directly attributable to his military service, in addition to his exposure to herbicides and secondary to diabetes mellitus. Thus, on remand, the Veteran should be accorded an opportunity to undergo a new VA examination--one in which the examiner fully and adequately addresses all theories of entitlement presented in this case, to include providing sufficient rationale for all findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Because the outcome of the Veteran's SMC and housing claims may depend on the claim for service connection for a bilateral lower leg disability, it is appropriate to defer consideration of these issues until the development requested is complete. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are intertwined if one claim could have significant impact on the other). Thus, a decision on the SMC and housing issues is deferred pending completion of the actions requested below. Finally, any additional treatment records not currently associated with the claims file and relevant to the remaining issues on appeal must be obtained. Accordingly, the case is REMANDED for the following action: 1. Any VA or private treatment records not currently associated with the Veteran's file and relevant to the remaining claims on appeal should be associated with the claims folder. 2. Then, schedule the Veteran for a VA examination to determine the nature, extent, and etiology of any lower leg disability (other than peripheral neuropathy) that the Veteran may have. The claims file, including a copy of this remand, must be reviewed in conjunction with the examination. All indicated tests should be conducted, and the reports of any such studies should be incorporated into the examination report to be associated with the claims file. The examiner should identify any and all current lower leg disabilities (other than peripheral neuropathy) and answer the following: (a) Is it at least as likely as not that any diagnosed disability is related to the Veteran's active duty, on a direct incurrence basis as well as to his conceded herbicide exposure? (b) Is it at least as likely as not that any diagnosed disability was caused or aggravated (permanently worsened beyond natural progression) by the Veteran's service-connected diabetes mellitus? (If the Veteran is found to have a lower leg disability that is aggravated by his service-connected diabetes mellitus, the examiner should quantify the approximate degree of aggravation.) A full and complete rationale for all opinions expressed must be provided. If the examiner determines that he/she cannot provide an opinion on the issue at hand without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, he/she should comment on whether an opinion could not be rendered because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. 3. Thereafter, readjudicate the issues remaining on appeal. If any of the benefits sought remains denied, issue a supplemental statement of the case, and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs