Citation Nr: 1800526 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 14-31 560A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a rating in excess of 50 percent for post-traumatic stress disorder (PTSD) from September 14, 2010, and in excess of 70 percent from July 12, 2013. 2. Entitlement to service connection for tinea versicolor. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD C. Ryan, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1968 to December 1969. This matter arose to the Board of Veterans' Appeals (Board) from a December 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran participated in a video conference hearing before the undersigned Veterans Law Judge (VLJ) in January 2017. A transcript of the hearing is associated with the Veteran's record. FINDINGS OF FACT 1. Resolving all doubt in the Veteran's favor, the Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas. 2. Resolving all doubt in the Veteran's favor, the Veteran's tinea versicolor is etiologically related to his time in service. 3. The Veteran is in receipt of service connection for disabilities totaling 80 percent from September 2012 and he is unable to secure or follow a substantial gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for PTSD are approximated for the appeal period. 2. The criteria for service connection for tinea versicolor are met. 2. The criteria for a TDIU are met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS PTSD The Veteran contends that his PTSD warrants an evaluation higher than its currently assigned evaluation of 50 percent. For the following reasons, the Board finds the Veteran entitled to a 70 percent rating for his PTSD throughout the appeal period. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran is currently in receipt of a 70 percent rating for PTSD, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411, and was also in receipt of a 50 percent rating earlier in the appeal period. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Under the general rating formula, a 50 percent rating is assigned for 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted for 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 situations (including work or a worklike setting); and an inability to establish and maintain effective relationships. Id. Finally, a total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology, as well as the occupational and social impairment associated with the rating code to determine whether an increased evaluation is warranted. An examiner's classification of the level of psychiatric impairment, by words or by score, is to be considered, but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. In addition, lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a); Layno v. Brown, 6 Vet. App. 465, 470 (1994). The Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). A review of the evidence reveals the following: The Veteran was first awarded service connection for PTSD in September 2010. The Veteran's initial Compensation and Pension (C&P) examination in March 2011 revealed that the Veteran suffered through an isolated social life, with close contacts only with his children and grandchildren. The Veteran spent his days caring for his grandson and watching television. The Veteran denied homicidal or suicidal ideation, hallucinations. The Veteran was oriented to person, place, situation, date, and time; he denied an inability to complete his activities of daily living, did not suffer from memory loss or impairment, or obsessive or ritualistic behaviors. In September 2013, the Veteran received an additional C&P examination in which the examiner determined the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The Veteran informed the examiner he enjoyed a good relationship with his wife and adult children. However, the Veteran did not enjoy friendships outside his family. The Veteran suffered from the following symptoms: anxiety; suspiciousness; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; and an inability to establish and maintain effective relationships. Notably, the Veteran did not suffer from suicidal or homicidal ideation, persistent delusions or hallucinations, neglect of personal appearance and hygiene; disorientation to time or place; or an inability to complete one's activities of daily living. In October 2015, the Veteran received an additional C&P examination in which the examiner determined the Veteran's PTSD was productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Socially, the Veteran explained, he enjoyed close relationships and rapport with his wife and his grandson. The Veteran's attended his grandson's sporting events, and his grandson always pulled the Veteran out of his bad moods and encouraged him to engage in activities. The Veteran did not have any other friends or close relationships and did not belong to any churches, clubs, or social groups. Mentally, the Veteran explained that he suffered from suicidal thoughts and frequent angry outbursts, yet he had not felt comfortable enough in the previous two C&P examinations to discuss those thoughts. Vocationally, the Veteran explained, he and his wife owned a restaurant but he was no longer involved in the day to day details because he was causing problems with his anger and outbursts. The Veteran suffered from the following PTSD symptoms: anxiety; suspiciousness; chronic sleep impairment; impaired judgment; difficulty in establishing and maintaining effective work and social relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. Notably, the Veteran did not suffer from an inability to complete his activities of daily living; neglect of personal appearance or hygiene; hallucinations or delusions; or no understanding of person, place, or time. At the hearing, the Veteran testified that he suffered from severe depression, insomnia, angry outbursts, an inability to work, and triggers for flashbacks, The evidence paints a picture of a Veteran struggling with an inability to maintain employment, suicidal ideation, angry outbursts, and social isolation from individuals outside his family. The Board finds that the lay and medical evidence more nearly approximates mental health symptoms productive of occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and mood throughout the entire appeal period. See 38 C.F.R. § 4.130. Accordingly, when considered in its totality, the lay and medical evidence demonstrates that the Veteran suffers from mental health symptoms warranting a 70 percent rating, with deficiencies in most areas throughout the entire appeal period. In the aggregate, however, the Veteran's C&P examinations and private assessments demonstrate that the Veteran continues to maintain social relationships with his family and perform household chores and activities with his grandson. Thus, the Veteran does not demonstrate total social impairment, the necessary criterion for the higher 100 percent rating. As noted above, the Veteran continues to maintain relationships with his wife and grandson and children and enjoy chores and outings with those individuals. There is no other evidence of psychosis or neglect of person appearance of hygiene, or an inability to complete the activities of daily living in the record. Accordingly, the Board finds that the Veteran's psychiatric symptoms, considered in isolation from his other service-connected disabilities, do not demonstrate total social impairment, as illustrated by the criteria for a 100 percent rating. In sum, the evidence demonstrates that the overall impairment caused by the Veteran's psychiatric condition more nearly approximates occupational and social impairment with reduced reliability and productivity, for the entire appeal period. Total social impairment due solely to psychiatric symptomatology has not been established. Total occupational impairment is addressed below. Tinea Versicolor The Veteran contends that he is entitled to service connection for tinea versicolor. For the following reasons, the Board finds service connection warranted. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Concerning the Veteran's tinea versicolor, the record reveals that the Veteran suffers from tinea versicolor related to service. The Veteran credibly testified that, following his return from Vietnam, he developed a skin condition which worsens in the sun and certain weather. Although there is negative nexus evidence of record, notably the December 2010 C&P examination, the Board finds that the positive evidence is approximately equivalent, as the Veteran is competent to report upon the continuity of symptomology and the timing of when the condition began. Accordingly, the Veteran fulfills the criteria necessary for service connection, and service connection is granted. TDIU The Veteran contends that his service-connected disabilities-particularly his PTSD-render him unable to secure or follow a substantially gainful occupation. For the reasons that follow, the Board finds that a TDIU is warranted. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more; or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In this case, the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a). After reviewing the record, the Board finds that the Veteran's occupational background, medical history, testimony, and the reports from VA examinations demonstrate that he is unable to secure or follow a substantially gainful occupation. Notably, the Veteran has not worked since September 9, 2012. In sum, as the evidence in favor of the request is in relative equipoise, when resolving all doubt in the Veteran's favor, the Board finds that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Consequently, a TDIU will be granted from September 9, 2012, the day the Veteran had to stop working due to his PTSD. ORDER Entitlement to a rating of 70 percent throughout the appeal period for PTSD is granted. Service connection for tinea versicolor is granted. Entitlement to a TDIU rating from September 9, 2012 is granted. ____________________________________________ BRADLEY W. HENNINGS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs