Citation Nr: 1756961 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-10 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an initial disability rating in excess of 50 percent for an acquired psychiatric disorder, characterized as posttraumatic-stress disorder (PTSD) and major depressive disorder, prior to April 4, 2014. 2. Entitlement to an initial disability rating in excess of 10 percent for a back disorder prior to May 5, 2015. 3. Entitlement to an initial compensable disability rating for right lower extremity radiculopathy prior to May 5, 2015. 4. Entitlement to an initial compensable disability rating for hemorrhoids prior to July 7, 2015. 5. Entitlement to total disability rating based on individual unemployability (TDIU) prior to April 4, 2014. REPRESENTATION Appellant represented by: Paul B. Burkhalter, Attorney WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1984 to January 1985 and July 1990 to January 2010. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions rendered in February 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, and in June and July 2015 by the RO in Waco, Texas. Jurisdiction over the appeal is currently with of the RO in Waco, Texas. In November 2012, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In October 2015, the Veteran requested another videoconference hearing before the Board at the RO. As such, in May 2017, the Veteran testified before the undersigned VLJ at a videoconference hearing at the RO. The transcripts for both hearings are of record. At his May 2017 hearing, the Veteran indicated that he was satisfied with the current assigned ratings for the disorders on appeal. However, he stated that he believed that he was entitled to increased staged ratings for the initial periods on appeal, as reflected in the title page. Therefore, as the Veteran is satisfied with his current ratings (as reflected in the title page), this is a full grant of the benefits sought on appeal, and this part of the claims are no longer on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). FINDINGS OF FACT 1. Prior to April 4, 2014, The Veteran's psychiatric disorder was manifested by occupational and social deficiencies in most areas. 2. Prior to May 5, 2015, the Veteran's back disorder has been characterized by pain and limitation of motion with forward flexion of the thoracolumbar spine less than 60 degrees but greater than 30 degrees. 3. Prior to May 5, 2015, the neurological symptoms in Veteran's right lower extremity were characterized by moderate incomplete paralysis with numbness, abnormal sensory function, and pain. 4. Prior to July 7, 2015, the Veteran's hemorrhoids have been characterized by large external hemorrhoids with occasional bleeding and pain. 5. As of February 14, 2014, the Veteran's service-connected disabilities prevented him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 70 percent, but no more, for an acquired psychiatric disorder, characterized as PTSD and major depression, for the period from February 1, 2010 to April 3, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial disability rating of 20 percent, but no more, for a back disorder from February 1, 2010 to May 4, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Code (DC) 5242 (2017). 3. The criteria for an initial disability rating of 20 percent, but no more, for right lower extremity radiculopathy from February 1, 2010 to May 4, 2015, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.6, 4.120, 4.123, 4.124, 4.124a, DC 8526 (2017). 4. The criteria for an initial disability rating of 10 percent, but no more, for hemorrhoids from February 1, 2010 to July 6, 2015, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.114, DC 7336 (2017). 5. The criteria for entitlement to TDIU as of February 14, 2014, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings The Veteran is seeking increased staged ratings during the initial periods on appeal for his service-connected psychiatric disorder, back disorder, radiculopathy, and hemorrhoids. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2017); see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD Prior to April 4, 2014, the Veteran's psychiatric disorder has been assigned a disability rating of 50 percent under 38 C.F.R. § 4.130, Diagnostic Code 9411. In order to warrant the next-higher 70 percent rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired impulse control (such as unprovoked irritability with periods of violence); near-continuous panic or depression affecting ability to function independently, appropriately and effectively; spatial disorientation; speech intermittently illogical, obscure, or irrelevant; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). After a review of the evidence of record, the Board determines that a rating of 70 percent, but no more is warranted prior to April 4, 2014. In this case, the Veteran had symptoms of nightmares, depression, anxiety, and suicidal ideation during service. Moreover, the records indicate that the Veteran required a 30 day hospitalization for his psychiatric symptoms, including suicidal ideations during service. In a November 2009 VA examination, the Veteran presented with symptoms of irritability, angry outburst, depression, anxiety, social avoidance, hyperarousal, insomnia, and nightmares. The examiner noted that the Veteran had passive thoughts of suicide. In June 2010, the Veteran's private treatment records reflect that he had continuing symptoms of depression, anxiety, and suicidal ideations with feelings of hopelessness and worthlessness. In a March 2011 VA examination, the Veteran had symptoms of uncontrolled anger, irritability, depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. The Veteran indicated that he had daily thoughts of suicide. In October 2012, the Veteran's private psychiatrist documented that he had severe nightmares, panic attacks, insomnia, depression, and anxiety with daily thoughts of suicidal ideations. As a result, he opined that the Veteran displayed occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, and mood. Therefore, the Board finds that the Veteran exhibits objective symptoms that would be sufficient to warrant a rating of 70 percent. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disorders, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). As such, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause deficiencies in most areas, to include social and occupational inadaptability. In this regard, it is clear that the Veteran's disorder reflects serious impact on his social and occupational functioning. Specifically, the March 2011 VA examination reports that the Veteran was arrested for threatening to kill his dog's groomer. Moreover, the records indicate that the Veteran had periods of uncontrolled anger that adversely affected his relationship with his wife and children. Moreover, the Veteran largely isolated himself socially and would primarily visit "VFW buddies" to drink. The Board has also considered the Veteran's Global Assessment of Functioning (GAF) score. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995). The Veteran's GAF scores reported by his private mental health providers and VA examiners ranged from 43 to 51 between 2010 and 2012. A GAF of 41-50 would indicate "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). A GAF of 51 to 60 is defined as moderate 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). Here, the Board finds that the Veteran's symptoms are most closely reflected in a GAF score in the 41-50 range. Therefore, a disability rating of 70 percent for the entire period on appeal prior to April 4, 2014 is warranted. Finally, the Board notes that since the Veteran has specifically requested a rating of 70 percent prior to April 4, 2014, the Board will consider this to be a full grant of the benefits sought on appeal and will not address whether or not he is entitled to a higher rating. Cf. AB v. Brown, 6 Vet. App. 35 (1993). Back Disorder Prior to May 5, 2015, the Veteran has been in receipt of a 10 percent disability rating under 38 C.F.R. § 4.71a, DC 5242 (addressing the lumbar spine). A rating in excess of 10 percent is warranted for a lumbar spine disability when the evidence shows: * Forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees (20 percent under DC 5241); * A combined range of motion of the thoracolumbar spine not greater than 120 degrees (20 percent); * Muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, revered lordosis, or abnormal kyphosis; * Intervertebral disc syndrome with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20 percent); or, * X-ray evidence of arthritis with the involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations (20 percent under DC 5003). 38 C.F.R. § 4.71a, DC 5242 (2017). Based on the evidence of record, a rating of 20 percent, but no more, is warranted prior to May 5, 2015. Here, at a private treatment examination, the Veteran's medical provider documented that the Veteran exhibited between 30 to 90 degrees of flexion in his back. In June 2014, the Veteran had 50 degrees of flexion in his back. In arriving at this conclusion, the Board acknowledges the negative evidence which includes the Veteran's April 2011 VA examination - in which he exhibited 70 degrees of flexion. Nevertheless, the Board finds that the Veteran still had painful motion throughout flexion. As a result, the evidence is at least in equipoise that the Veteran had between 30 degrees and 60 degrees of flexion in his lumbar spine. Therefore, a rating of 20 percent for the entire period on appeal prior to May 5, 2015 is for application. Finally, as the Veteran has specifically requested a rating of 20 percent prior to May 5, 2015, the Board will consider this to be a full grant of the benefits sought on appeal and will not address whether or not he is entitled to a rating higher than 20 percent. Cf. AB v. Brown, 6 Vet. App. 35 (1993). Radiculopathy Prior to May 5, 2015, the Veteran was not in receipt of a rating for his right lower extremity radiculopathy. However, given that the Veteran's radiculopathy is a neurological disorder caused by his service-connected lumbosacral disorder, the Board will construe the Veteran's claim as one for entitlement to a compensable rating prior to May 5, 2015, as it is part and parcel to a lumbar spine increased rating claim. As such, the Board will assign an initial noncompensable rating under DC 8526 for the Veteran's right lower extremity radiculopathy. In order to warrant a compensable rating under DC 8526, the evidence must demonstrate incomplete paralysis of the anterior crural nerve at the "mild" (10 percent) or "moderate" (20 percent) level. 38 C.F.R. § 4.124a. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Here, based on the evidence of record, the evidence is at least in equipoise that a rating of 20 percent, but no more, is warranted prior to May 5, 2015. Specifically, the Veteran's private treatment records, including from April 2010, January 2011, and August 2012, reflect that the Veteran had constant pain, numbness, and decreased sensory and motor function that most closely approximates the "moderate" level of incomplete paralysis contemplated by DC 8526. Therefore, the Board finds that a 20 percent rating, but no more, for the entire period on appeal prior to May 5, 2015 is warranted for the Veteran's right lower extremity radiculopathy. Additionally, the Board notes that the Veteran has specifically requested a rating of 20 percent, prior to May 5, 2015. As such, the Board will consider this to be a full grant of the benefits sought on appeal. Cf. AB v. Brown, 6 Vet. App. 35 (1993). Hemorrhoids Prior to July 7, 2015, the Veteran's hemorrhoids have been assigned a noncompensable rating under 38 C.F.R. § 4.114, DC 7336. Under this diagnostic code, the next higher 10 percent rating is warranted when evidence indicates the presence of external or internal hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. See 38 C.F.R. § 4.114, DC 7336. Based on the evidence of record, a rating of 10 percent, but no more is warranted prior to July 7, 2015. Specifically, at November 2009 and March 2011 VA examinations, the examiners reported that the Veteran had a history of past hemorrhoidectomies, and that his hemorrhoids caused recurrent bleeding. Similarly, in April 2011, the Veteran's private medical provider indicated that the Veteran had rectal bleeding due to his hemorrhoids. Moreover, in January 2012, the Veteran's private physician found external and internal hemorrhoids with mucosal thickening. In a July 2015 VA examination, the VA examiner opined that the Veteran's hemorrhoids are large and are "currently as severe as they were before his surgery [in 2009]." As a result, the evidence is at least in equipoise that the Veteran's hemorrhoids most closely approximately the criteria for an initial 10 percent rating for the entire period on appeal prior to July 7, 2015. Additionally, given that the Veteran specifically requested a 10 percent rating for the period on appeal prior to July 7, 2015, the Board finds that this is a full grant of the benefits sought. Cf. AB v. Brown, 6 Vet. App. 35 (1993). TDIU The Veteran has asserted that he has been unable to work because of his service-connected disabilities since February 14, 2014. Notably, the Veteran has been granted TDIU as of April 4, 2014. Therefore, as discussed, the only period on appeal with respect to TDIU is from February 14 to April 4, 2014. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of "individual unemployability," or when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify TDIU. 38 C.F.R. §§ 3.341(a), 4.19; See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). In this case, the Board determines that TDIU should be granted for the period on appeal. As an initial matter, the Board notes that the Veteran met the schedular requirements for TDIU throughout the entire period on appeal. The Veteran is service-connected for the following: psychiatric disorder (100 percent), migraines (30 percent); irritable bowel syndrome (30 percent); back disorder (20 percent); lower right extremity radiculopathy (20 percent), hemorrhoids (20 percent); right knee disorder (10 percent); left knee disorder (10 percent); tinnitus (10 percent); and noncompensable ratings for COPD, scrotal mass, tinea pedis, Bell's Palsy, and hearing loss. Therefore, the Veteran has an overall combined disability rating of -100 percent. Further, the evidence demonstrates that the Veteran was unable to obtain gainful employment during this period. In making this determination, the Board places significant probative value on the Veteran's contentions that the combined effects of his service-connected disabilities, including severe nightmares, anxiety, anger issues, and chronic alcohol abuse, prevented him from working. Specifically, the Board acknowledges the Veteran's credible and competent statements that his service-connected disabilities forced him to quit his job as a welder, given that he could no longer perform his job duties, which required significant concentration. Moreover, the Board also places significant probative value on the opinions from the VA examiners which indicate that the Veteran's service-connected disabilities caused significant interference with his ability to work. Again, the question in this case is whether the Veteran could secure or follow substantially gainful employment, not whether he was totally precluded from work. The evidence in this case places the question of substantially gainful employment in great doubt, and the Board has resolved all doubt in the Veteran's favor. Additionally, the Board notes that as discussed, the Veteran is in receipt of a combined 100 percent schedular rating for his service-connected disabilities during the period on appeal. As such, the grant of TDIU since this date will not result in any additional benefit since this period. However, this does not mean that the issue of TDIU is moot since this date. Rather, the United States Court of Appeals for Veterans Claims (Court) has held that that a grant of TDIU may satisfy the "disability rated as total requirement" for purposes of establishing entitlement to special monthly compensation (SMC) under 38 U.S.C.A. § 1114(s). Bradley v. Peake, 22 Vet. App. 280, 291 (2008). Thus, for example, if the evidence establishes that the Veteran is unemployable due to a certain disability, and the combined disability rating of his remaining service-connected disabilities is 60 percent or more, he would eligible for SMC. See also Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). However, in this case, the record does not suggest, and the Veteran does not allege that he meets either the factual or schedular basis for SMC. Accordingly, entitlement to TDIU as of February 14, 2014, is granted. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). VA Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). In this case, to the extent it is being adjudicated, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and need not be further considered. ORDER An initial disability rating of 70 percent, but no more, for an acquired psychiatric disorder, characterized as PTSD and major depressive disorder, from February 1, 2010 to April 3, 2014, is granted. An initial disability rating of 20 percent, but no more, for a back disorder, from February 1, 2010 to May 4, 2015, is granted. An initial disability rating of 20 percent, but no more, for right lower extremity radiculopathy, from February 1, 2010 to May 4, 2015, is granted. An initial disability rating of 10 percent, but no more, for hemorrhoids, from February 1, 2010 to July 6, 2015, is granted. Entitlement to TDIU, as of February 14, 2014, is granted. ______________________________________________ B.T. KNOPE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs