Citation Nr: 1802035	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  10-21 383	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to an initial disability rating in excess of 20 percent for a back disability.

2.  Entitlement to an initial disability rating in excess of 0 percent for degenerative arthritis of the MP and IP joints of the right thumb with laxity of the radial collateral ligament (right thumb disability).

3.  Entitlement to an initial disability rating in excess of 50 percent for PTSD.

4.  Entitlement to an initial disability rating in excess of 0 percent for residuals of a hemorrhoidectomy.

5.  Entitlement to a total disability based on individual unemployability (TDIU).


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

A. Hemphill, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the Army from November 1978 to November 1981, January 2003 to May 2004, and May 2007 to August 2007.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2008, December 2008 and January 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio.

Throughout the pendency of the appeal, the RO granted higher ratings for the back and PTSD claims; however, these ratings do not represent the highest possible ratings available under the Rating Schedule for these disabilities, and the Veteran has not indicated that he is content with the new ratings.  Therefore, his increased initial rating claims remain on appeal.  A.B. v. Brown, 6 Vet. App. 35 (1993).

In June 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ).  A transcript of the hearing is associated with the record.

The issues of entitlement to a rating in excess of 20 percent for a back disability and entitlement to 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.  The Veteran has arthritis in his right thumb MP and IP joints which results in painful noncompensable limitation of motion, with no ankylosis, including during flare-ups or on repetitive use, or, when attempting to oppose the fingers, or a gap of more than two inches between the thumb pad and fingers.  

2.  Throughout the appeal period, the Veteran's PTSD has most closely approximated social and occupational impairment with deficiencies in most areas.

3.  The Veteran's residuals of a hemorrhoidectomy have been manifested by objective findings of a mild to moderate hemorrhoid condition.


CONCLUSIONS OF LAW

1.  The criteria for an initial 10 percent rating, but no higher, for arthritis of the right thumb are met.  38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1-4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5010, 5228 (2017).

2.  The criteria for a 70 percent rating, but no higher, for PTSD are met for the entire appeal period.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.10, 3.159, 3.321, 4.1-4.14, 4.125, 4.130 Diagnostic Code 9411 (2017).

3.  The criteria for a compensable initial disability rating for residuals of a hemorrhoidectomy have not been met.  38 U.S.C.A. § 1155 (2012); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Increased Rating for Right Thumb

The Veteran's right thumb disability (degenerative arthritis of the MP and IP joints of the right thumb with laxity of the radial collateral ligament) is currently rated as 0 percent pursuant to Diagnostic Code 5228.  38 C.F.R. § 4.71a, Diagnostic Code 5228 (2017).  

Diagnostic Code 5010, which governs ratings of traumatic arthritis, provides that, if substantiated by x-rays, such arthritis should be rated as degenerative under Diagnostic Code 5003.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  Diagnostic Code 5003 provides that degenerative arthritis is to be rated on the basis of limitation of motion under the appropriate Diagnostic Code(s) for the specific joint or joints involved.  38 C.F.R. § 4.71a, Diagnostic Code 5003.  When, however, the limitation of motion of the specific joint or specific joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is assignable to for each such major joint or group of minor joints affected by the limitation of motion, to be combined, not added under Diagnostic Code 5003. 

In this case, the appropriate limitation of motion Diagnostic Code is 5228, which governs ratings of limitation of motion of the thumb.  Diagnostic Code 5228 provides that a 10 percent rating is assignable when there is a gap of 1 to 2 inches (2.5 to 5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers.  A 20 percent rating is assignable when there is a gap of more than 2 inches (5.1 cm) between the thumb pad and the fingers with the thumb attempting to oppose the fingers.  There is no distinction between the major and minor hands.  38 C.F.R. § 4.71a, Diagnostic Code 5228.

The medical evidence does not show that the limitation of motion of the Veteran's thumb warrants a compensable rating under Diagnostic Code 5228.  However, applying the criteria of Diagnostic Code 5003, the Veteran is entitled to a 10 percent rating as there is X-ray evidence of degenerative arthritis of the MP and IP joints of the right thumb.  Therefore, an initial 10 percent disability rating is warranted.

As the right thumb MP and IP joints result in painful noncompensable limitation of motion, but not ankylosis, including during flare-ups or on repetitive use, 10 percent is the maximum rating assignable.  In the absence of evidence of a gap of more than two inches (5.1 centimeters) between the thumb pad and the fingers when attempting to oppose such fingers, or of ankylosis, a rating in excess of 10 percent may not be assigned the thumb under Diagnostic Code 5228 or any other Diagnostic Code. 

Increased Rating for PTSD

When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission.  VA shall assign an evaluation 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.  38 C.F.R. § 4.126 (a) (2017).  When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126 (b) (2017).

The Veteran is currently rated at 50 percent for PTSD under Diagnostic Code 9411.  Under Diagnostic Code 9411, a 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); inability to establish and maintain effective relationships. 

A 100 percent rating is warranted 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; persistent danger of hurting self or others; 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.  
See Diagnostic Code 9411.

After review of the evidence, the Board agrees that the Veteran's symptoms more closely approximate the criteria for a 70 percent rating.  38 C.F.R. § 4.7.  He has occupational and social impairment with deficiencies in most areas.  38 C.F.R. § 4.130.  The Veteran reported that he has constant nightmares and sleeps with a weapon.  He exhibits obsessional rituals such as checking every room and closet in the house whenever he enters the home.  He also exhibits continuous panic and hallucinations as he constantly hears noises that no one else hears.  He has deficiencies in mood and has angry outbursts as he gets very angry at his wife and daughter over little things.  This evidence corresponds to a 70 percent rating.

The Board does not find that a 100 percent rating is warranted.  The record does not show total social and occupational impairment.  He is married and maintains a relationship with his daughter.  The record does not show that the Veteran has suicidal or homicidal ideations.  Although he has been shown to have angry outbursts, the record does not show grossly inappropriate behavior.  Thus, he is not socially impaired.  Further, although the Veteran is currently unemployed, the evidence does not show that PTSD causes total occupational impairment.  In sum, the Veteran's symptoms do not meet the criteria for a 100 percent rating.

Increased Rating for Residuals of a Hemorrhoidectomy

The Veteran's residuals of a hemorrhoidectomy are currently evaluated as 0 percent disabling under the disability criteria set forth at 38 C.F.R. § 4.114, Diagnostic Code 7336.  Under those criteria, a noncompensable evaluation is assigned for hemorrhoids that are mild or moderate.  Id.  A 10 percent evaluation is warranted for hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences.  Id.  A 20 percent evaluation is warranted for hemorrhoids with persistent bleeding and with secondary anemia, or with fissures.  Id.  
After review of the evidence, the Board finds that a higher 10 percent rating is not warranted.  The Veteran does not have hemorrhoids that are large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences as he had hemorrhoidectomy.  He testified that he gets blood in his stool and has to reduce consumption of spicy food.  A January 2016 VA examination report noes a history of hemorrhoids, but showed no evidence of external hemorrhoids.  Therefore, the medical evidence does not more nearly approximate at a 10 percent rating.  Absent any evidence that the Veteran's service-connected residuals of a hemorrhoidectomy manifest symptoms that are more than mild or moderate, a compensable rating is not warranted.  38 C.F.R. §4.114, Diagnostic Code 7336.


ORDER

An initial 70 percent disability rating for PTSD is granted.

An initial 10 percent disability rating for a right thumb disability is granted.

An initial compensable rating for residuals of a hemorrhoidectomy is denied.


REMAND

Remand is required for further development of the back and TDIU claims as the Veteran's June 2017 Board hearing testimony indicate the need for a VA examination to determine the current severity of the back disability.  In this regard, he testified that he has flare-ups and is sometimes unable to get out of bed because of back pain.  

Further, the Veteran testified that he has not worked since 2011, due to his disabilities, to include his service-connected back disability.  Accordingly, a remand is required for the RO to provide the Veteran with a Form VA 21-8940 Application for Increased Compensation Based on Unemployability, and to adjudicate this claim.

In light of the remand, updated VA treatment records should be obtained.

Accordingly, the case is REMANDED for the following action:

1.  Provide the Veteran with a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for him to complete, with instructions to return the form to the RO.  Also afford him the opportunity to identify or submit any additional pertinent evidence in support of his TDIU claim.

2.  Obtain updated VA treatment records.

3.  Upon completion of directives #1 and #2, schedule the Veteran for a VA examination to determine the current severity of his back disability.  The claims file, to include a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination.  All indicated tests should be performed and all findings should be reported in detail.

The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any.

A detailed explanation is requested for all opinions provided.  If an opinion cannot be provided without resort to speculation, provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be rendered.

4.  Thereafter, readjudicate the issues on appeal.   If the benefit sought on appeal remains denied, the Veteran should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. 

The Veteran 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).



______________________________________________
BRADLEY W. HENNINGS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs