Citation Nr: 1800839 Decision Date: 01/08/18 Archive Date: 01/19/18 DOCKET NO. 11-00 385 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for bilateral hearing loss. 3. Whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for bilateral leg numbness. 4. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to a rating in excess of 30 percent for gunshot wound to the right shoulder with fractured humerus and damage to Muscle Group III and posttraumatic degenerative changes of the acromioclavicular joint (hereinafter "residuals of gunshot wound to the right shoulder"). 6. Entitlement to service connection for residuals of a traumatic brain injury (TBI) (previously claimed as subdural hematoma), to include as secondary to service-connected PTSD. 7. Entitlement to a temporary total rating based on hospitalization for over 21 days. 8. Entitlement to a temporary total rating for surgery or other treatment requiring convalescence. 9. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Veteran, his wife, and his sister ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from September 1968 to June 1970. His awards and decorations include the Purple Heart. This case comes before the Board of Veterans' Appeals (Board) on appeal from January 2010 and April 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In October 2015, the Veteran, his wife, and his sister testified at a hearing before a Decision Review Officer (DRO). In September 2017, the Veteran, his wife, and his sister testified at a video conference hearing before the undersigned. During the hearing, the Veteran waived initial Agency of Original Jurisdiction review of any additional evidence associated with the record. The record was held open for 60 days, during which the Veteran submitted a November 2017 private Disability Benefits Questionnaire (DBQ) examination report for PTSD. Before reaching the merits of the claims for bilateral hearing loss and bilateral leg numbness, the Board must first determine whether new and material evidence has been received to reopen these previously denied claims. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). Therefore, the Board has listed these issues on the title page accordingly. The Board has recharacterized the Veteran's claim for subdural hematoma more broadly to residuals of a TBI in order to clarify the nature of the benefit sought and ensure complete consideration of the claim. Clemons v. Shinseki, 23 Vet. App. 1, 5-6, 8 (2009). The issues of entitlement to service connection for residuals of a TBI, entitlement to temporary total ratings, and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a September 2017 statement and at the September 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of entitlement to service connection for tinnitus and whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for bilateral hearing loss and bilateral leg numbness. 2. The Veteran's service-connected PTSD has been manifested by occupational and social impairment with deficiencies in most areas. 3. The preponderance of the evidence shows the Veteran is left hand dominant and his service-connected right shoulder disability is the non-dominant extremity. 4. For the entire rating period, the Veteran's service-connected residuals of gunshot wound to the right shoulder has been assigned at 30 percent, the maximum rating authorized under Diagnostic Code 5303. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the Veteran for the issue of entitlement to service connection for tinnitus have been met. 38 U.S.C. § 7105(d)(5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for withdrawal of an appeal by the Veteran for the issue of whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for bilateral hearing loss have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 3. The criteria for withdrawal of an appeal by the Veteran for the issue of whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for bilateral leg numbness have been met. 38 U.S.C. § 7105(d)(5); 38 C.F.R. § 20.204. 4. The criteria for a rating of 70 percent, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). 5. The criteria for entitlement to a rating in excess of 30 percent for residuals of gunshot wound to the right shoulder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.103, 3.159, 4.73, Diagnostic Code 5303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Claims Withdrawn The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. See 38 U.S.C. § 7105(d)(5). A substantive appeal may be withdrawn at any time before the Board promulgates a decision and must be in writing except for appeals withdrawn on the record at a hearing. 38 C.F.R. § 20.204. In this case, the issues of entitlement to service connection for tinnitus and whether new and material evidence has been received to reopen previously denied claims of entitlement to service connection for bilateral hearing loss and bilateral leg numbness were certified to the Board in July 2017, as noted in a VA Form 8. Prior to the promulgation of a decision in the appeal, the Veteran withdrew these issues for appellate consideration in a September 2017 statement and on the record at the September 2017 Board hearing. As he has withdrawn his appeal for these issues, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal on these issues, and they are dismissed. Higher Ratings Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in 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. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected PTSD and residuals of gunshot wound to right shoulder in this case, the present level of disability is of primary concern. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's disability should be viewed in relation to its history. 38 C.F.R. § 4.1 (2016); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007); see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2017). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 disabilities in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). PTSD The Board considers whether a rating in excess of 30 percent for PTSD is warranted at any time since or within one year prior to the date of claim on February 6, 2009. Pursuant to the General Rating Formula for Mental Disorders, a 30 percent rating is assigned 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). See 38 C.F.R. § 4.130, Diagnostic Code 9411. The next-higher rating of 50 percent rating is warranted 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 rating of 70 percent rating 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 circumstances (including work or a work-like setting); or an inability to establish and maintain effective relationships. Id. A rating of 100 percent is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). The record contains Global Assessment of Functioning (GAF) scores, which are part of the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). GAF scores ranging between zero and 100 percent, represent the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health-illness. Higher scores correspond to better functioning of the individual. During the appeal period, the Veteran's GAF score was 55. GAF scores ranging between 51 and 60 are assigned when there are moderate symptoms (like flat affect and circumstantial speech, and occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Review of the evidentiary record within one year prior to the date of claim on February 6, 2009 is silent for any psychiatric symptomatology for service-connected PTSD. After review of the pertinent evidence of record since the date of claim on February 6, 2009, the Board finds the Veteran's service-connected PTSD more closely approximates manifestations of occupational and social impairment with deficiencies in most areas due to his psychiatric symptomatology. Specifically, the Veteran's psychiatric symptomatology during the appeal period includes the following: impatience, irritability, anxiety, unhappiness, sadness, depression, hopelessness, and difficulty with recall task (as noted in the May 2009 private psychological evaluation report); nightmares, chronic sleep impairment, mild memory loss, difficulty in adapting to stressful circumstances (as noted in the May 2012 VA DBQ examination for PTSD); and anxiety, anger, irritability, nightmares, and restless sleep (as noted in the May 2017 VA DBQ examination for PTSD). The May 2017 VA DBQ examiner also concluded the Veteran's level of occupational and social impairment is best summarized as with deficiencies in most areas due to psychiatric symptomatology. At the September 2017 Board hearing, the Veteran and his wife and sister credibly reported the following psychiatric symptomatology: suicidal ideation, withdrawn from family members at times, frustration, near-continuous state of depression and panic attacks, avoidance of crowds, and neglect of personal hygiene at times. His psychiatric symptomatology does not rise to the level of severity, frequency, or duration to demonstrate total occupational and total social impairment at any time during the appeal period to warrant a 100 percent disability rating. Review of the evidentiary record indicates the Veteran demonstrates acceptable grooming, alert and orientation, coherent thought processes, intact memory, good eye contact, and ongoing relationship with his wife. Moreover, his loss of employment was not noted as the result of his service-connected PTSD, but rather a TBI that occurred in November 2010, as concluded by the May 2012 VA DBQ VA examiner. The Board is aware that the symptoms listed under the next-higher rating of 100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, entitlement to such an evaluation requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board has considered the next-higher rating for the entire appeal period since February 6, 2009 but finds that it is rated appropriately at 70 percent. The signs and symptoms manifested are contemplated by the currently assigned rating of 70 percent as they do not manifest with the severity required for the 100 percent rating, which requires both total social and total occupational impairment. The Board has also considered the possibility of staged ratings and finds that the scheduler rating for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. Residuals of Gunshot Wound to the Right Shoulder The Board considers whether a rating in excess of 30 percent for residuals of gunshot wound to the right shoulder is warranted at any time since or within one year prior to the date of claim on February 6, 2009. Diagnostic Code 5303 provides evaluations for a disability of Muscle Group III. The function of these muscles are as follows: elevation and abduction of arm to level of shoulder; act with 1 and 2 of Group II in forward and backward swing of arm. The muscle group includes intrinsic muscles of shoulder girdle: (1) Pectoralis major I (clavicular); (2) deltoid. 38 C.F.R. § 4.73. A severe injury warrants a 30 percent rating, the maximum available, for the non-dominant extremity. Id. In this case, while the May 2017 VA DBQ examiner noted the Veteran is ambidextrous, review of the evidentiary shows the Veteran is left-handed, as noted in the September 2009 and May 2012 VA examination reports and VA treatment records dated January 2011, February 2011, April 2014, and November 2016. As such, the Board finds that the preponderance of the evidence shows the Veteran is left hand dominant, thus the service-connected right shoulder disability is the non-dominant extremity. Review of the evidentiary record within one year prior to the date of claim on February 6, 2009 is silent for any musculoskeletal and/or muscle symptomatology for service-connected residuals of gunshot wound to the right shoulder. Since the Veteran's service-connected residuals of gunshot wound to the right shoulder have been assigned the maximum schedular rating authorized under Diagnostic Code 5303 for the period since February 6, 2009, the Board finds there is no legal basis upon which to award a higher schedular evaluation for this disability. As a result, a rating in excess of 30 percent is denied for the service-connected residuals of gunshot wound to the right shoulder. See 38 C.F.R. § 4.73, Diagnostic Code 5303. Pursuant to the Veteran's statement submitted with the December 2010 VA Form 9, the Board has considered other potentially applicable Diagnostic Codes. See Schafrath, 1 Vet. App. at 589. Specifically, the Veteran asserts that a higher rating of 40 percent is warranted for his service-connected residuals of gunshot wound to the right shoulder under Diagnostic Code 5200 for ankylosis of the minor extremity. See 38 C.F.R. § 4.71a (2017). Review of the evidentiary record does not reflect that there are any other musculoskeletal disorders or muscle injuries of the shoulder that the Veteran's residuals of gunshot wound to the right shoulder are more properly rated under another Diagnostic Code. In fact, the May 2012 and May 2017 VA DBQ examiners documented there were no findings of ankylosis of the Veteran's right shoulder after clinical evaluation. Accordingly, an increased evaluation under alternate Diagnostic Codes is not warranted in this case. Lastly, the Board notes that the issue of service connection for scars associated withdrew the service-connected residuals of gunshot wound to the right shoulder was granted, assigned at 10 percent effective from February 6, 2009, in a February 2010 VA rating decision. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). While the Veteran submitted a timely notice of disagreement with the February 2010 VA rating decision and a timely substantive appeal in December 2010, the Veteran with the claim for an initial rating in excess of 10 percent in a July 2014 VA Form 21-4138 prior to certification to the Board. As a result, any consideration of a higher rating for the service-connected scars associated with the residuals of gunshot wound to the right shoulder will not be discussed in this case. ORDER The appeal for entitlement to service connection for tinnitus is dismissed. The appeal for whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for bilateral hearing loss is dismissed. The appeal for whether new and material evidence has been received to reopen previously denied claim of entitlement to service connection for bilateral leg numbness is dismissed. A rating of 70 percent, but no higher, for PTSD is granted. A rating in excess of 30 percent for residuals of gunshot wound to the right shoulder is denied. REMAND An additional VA medical opinion is needed for the issue of entitlement to service connection for residuals of a TBI. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). The Veteran contends that his November 2010 TBI was the result of his nightmares and review of the record indicates the Veteran was drinking alcohol at the time of the TBI. In May 2012, the Veteran was afforded a VA examination and medical opinion for residuals of a TBI on a secondary basis for causation. At that time, his residual was identified as subdural hematoma, but most recently, the May 2017 VA DBQ examiner for PTSD rendered a diagnosis of major neurocognitive disorder as attributable to the TBI. After review of the record, the Board finds this issue has not been properly addressed on a secondary basis regarding aggravation (of the residuals of a TBI from the service-connected PTSD) or on a secondary basis regarding causation (link between major neurocognitive disorder with the service-connected PTSD). The Board further notes that the service-connected PTSD is manifested by symptomatology of nightmares, the September 2012 VA DBQ addendum report notes "the Veteran's substance abuse was considered likely to contribute to his experience of nightmares," and the May 2017 VA DBQ examiner noted the Veteran's substance abuse attributes to problems with sleep and mood. When VA undertakes to provide a VA medical opinion, it must ensure that the opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). A remand is also needed for the issues of entitlement to temporary total ratings based on hospitalization for over 21 days and for surgery or other treatment requiring convalescence, as well as, a TDIU. While the Board remands the issue of service connection for residuals of a TBI, that decision may impact these claims. As such, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following actions: 1. Return the Veteran's claims file to the examiner who conducted the May 2012 VA DBQ examination for residuals of a TBI so a supplemental opinion may be provided. If that examiner is no longer available provide the Veteran's claims file to a similarly qualified clinician. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt of these materials in any reports generated. A new examination is only required if deemed necessary by the examiner. The examiner must opine as to the following: a) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's residuals of a TBI (to include subdural hematoma, cognitive disorder not otherwise specified, adjustment disorder with depressed mood, and major neurocognitive disorder) was aggravated beyond its natural progression by his service-connected PTSD, to include symptomatology of nightmares. b) Whether it is at least as likely as not that the Veteran's major neurocognitive disorder (as a residual of a TBI) was proximately due to or the result of his service-connected PTSD to include symptomatology of nightmares. c) Whether it is at least as likely or not that the Veteran's major neurocognitive disorder (as a residual of a TBI) was aggravated beyond its natural progression by his service-connected PTSD to include symptomatology of nightmares. The examiner must provide all findings, along with a complete rationale for his or her opinions in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, the AOJ should review the medical opinions to ensure that the requested information was provided. If any opinion is deficient in any manner, the AOJ must implement corrective procedures. 4. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs