Citation Nr: 1806134 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 12-19 355 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy as secondary to a low back disability. 3. Entitlement to compensation under 38 U.S.C. § 1151 for scarring following cryotherapy to the flexor surface of the distal aspect of the left third finger proximal phalanx with post treatment reflex sympathetic dystrophy and mild flexor tendonitis. 4. Entitlement to an increased rating for posttraumatic stress disorder (PTSD), currently rated as 50 percent disabling. 5. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Christopher L. Loiacono, Agent ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from November 1965 to June 1972. The Veteran died in July 2014. The Appellant is his surviving spouse and has been granted substitution pursuant to 38 U.S.C. § 5121A. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Detroit, Michigan Regional Office (RO) of the Department of Veterans Affairs (VA). Generally, where a claim has been finally adjudicated, a claimant must present new and material evidence in order to reopen the previously denied claim. 38 U.S.C.A. §5108 ; 38 C.F.R. § 3.156 (a). However, when VA receives relevant service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156 (c)(1) (2016). In this case, the last prior denial was issued by the RO in a March 2005 rating decision. At the time of the March 2005 rating decision, all of the Veteran's service military personnel records were not associated with the claims file. After a review of the evidence, the Board finds that relevant military personnel records have been added to the record since the last prior decision. Specifically, the Veteran's flight records and also documents that he was awarded combat time. As such, the Board will reconsider the claim of service connection for a low back disability on a de novo basis, without the need for new and material evidence. The issues of service connection for a low back disability, compensation under 38 U.S.C. § 1151, 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 The Veteran's PTSD resulted in total occupational and social impairment. CONCLUSION OF LAW The criteria for a 100 percent rating for PTSD are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION PTSD Disability evaluations are determined by comparing a veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In deciding the Veteran's increased evaluation claims, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 22 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased rating claims. The regulations for mental disorders are found in 38 C.F.R. §§ 4.125-4.130. The Board notes that PTSD is evaluated under Diagnostic Code 9411 which is rated according to the General Rating Formula for Mental Disorders. The rating criteria provides a 50 percent rating is provided 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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; 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. 38 C.F.R. §§ 4.125-4.130. In conjunction with the current claim, the Veteran was afforded a VA examination in April 2009. It was noted that the Veteran had been married for 39 years, but currently the relationship with his wife was more like a mother and child relationship. The Veteran had no friends. He had been diagnosed with alcohol abuse in the past year. Mental status examination revealed that the Veteran was cognitively intact. His mood was "down" and he had some compulsive behavior. The Veteran had difficulty concentrating, irritability, depression, and tearfulness. This examiner felt that the Veteran could not handle his finances and was incompetent. Although the Veteran has been variously found by VA to be incompetent, during the appeal, he was considered competent. The Veteran's psychiatric disability appeared complicated by vascular issues and the VA examiner indicated that his other cognitive disorder likely played a role in his social withdrawal, but no exact quantitative distinction was made with regard to the symptoms of the PTSD and the other cognitive disorder. The Board is precluded from differentiating between symptoms attributable to PTSD and those associated with the nonservice-connected disorder absent clinical evidence clearly showing such distinction, thus, all symptoms are considered part of his service-connected psychiatric disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). Despite the fact that the examiner opined that the Veteran was incompetent, he opined that the Veteran' symptoms were consistent with the 50 percent criteria. A private evaluation was thereafter submitted and dated in October 2012. It was noted that the Veteran considered himself to be a recluse socially. Various psychiatric testing was performed. The examiner noted that the results of the interviews, combined with the test results, indicated an individual who was experiencing significant psychological problems. The Veteran reported a number of difficulties consistent with a significant depressive experience. He was likely to be plagued by thoughts of worthlessness and hopelessness. He reported a disturbance in his sleep pattern. His thought processes were likely to be marked by confusion, distractibility, and difficulty concentrating, and his thoughts might somehow be blocked or disrupted. There was no active psychosis. There was a discomforting level of anxiety and tension. The primary manifestations appeared to be in the affective and physiological areas. Affectively, the Veteran felt a great deal of tension, had difficulty relaxing, and likely experienced fatigue as a result of high perceived stress. Physical signs of tension and stress, such as sweaty palms, trembling hands, complaints of irregular heartbeats, and shortness of breath were also present. He described having specific fears and anxiety. The Veteran was uncertain about major life issues. He also exhibited social withdrawal and detachment. The Veteran demonstrated a preoccupation with physical functioning and health matters with severe impairment arising from somatic symptoms. The Veteran was prone to be self-critical and pessimistic, dwelling on past failures and lost opportunities with considerable uncertainty and indecision about plans and goals for the future. Given this self-doubt, he tended to blame himself for setbacks and saw any prospects for future success as dependent upon the actions of others. The examiner indicated that the Veteran had auditory hallucinations. The Veteran had plans to kill himself with a gun, but no current intent. However, he expressed having no interest in life. The Veteran exhibited speech which was blocked, fragmented, and tangential. His mood was sad and his range of emotions was restricted. He exhibited inappropriate emotional reactions, such as inappropriate laughing. His memory was impaired and he was a reluctant historian. On most days, the Veteran reported having poor sleep, low energy, feelings of guilt, worthlessness, indecisiveness, recurrent thoughts of death/dying, and suicidal ideations. The examiner indicated that the Veteran was experiencing a disorienting loss of self-definition and direction in his life and he was unable to psychologically engage in competitive employment. Another private evaluation also endorsed symptoms spanning the various rating criteria and including symptoms associated with a total rating such as an intermittent inability to perform activities of daily living. The examiner indicated that the Veteran was markedly limited in areas of his industrial functioning including with his ability to interact with others. The Veteran's spouse has submitted several statements attesting to the Veteran's deficits in ability to function industrially and socially. The United States Court of Appeals for the Federal Circuit (Federal Circuit) in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013), acknowledged the "symptom-driven nature" of the General Rating Formula. The Federal Circuit observed that "a veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (emphasis added). The Federal Circuit explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. Although Vazquez-Claudio confirms that symptomatology will be the primary focus in cases for higher ratings for psychiatric impairment, it did not hold that the Board may treat the symptoms listed in General Rating Formula as a checklist from which the criteria are mechanically applied. Each list of symptoms associated with the 30 percent, 50 percent, 70 percent and 100 percent ratings in the General Rating Formula is preceded by the words "such as," confirming that the listed symptoms are simply examples. Instead, the Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating. See 713 F.3d at 118. Thus, when making such an assessment, the Board is mindful of how the frequency, severity, and duration of those symptoms affect occupational and social impairment. The Board is aware that the symptoms listed under the particular percentage evaluations are essentially examples of the type and degree of symptoms for those evaluations, and that the Veteran need not demonstrate those exact symptoms to warrant higher ratings. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In this case, the Board has afforded all reasonable doubt in finding that the symptoms more nearly approximated those appropriate for a 100 percent rating for PTSD. Although the VA examination indicated a higher level of functioning than the private medical evidence, the VA examiner also indicated that the Veteran was incompetent which appeared inconsistent with a 50 percent rating and more consistent with a total rating. While the Veteran does not exhibit all of the criteria for a 100 percent rating, he does exhibit some criteria and the Board finds that the frequency, severity, and duration of those symptoms affect occupational and social impairment to the level of total impairment. He is severely emotionally restricted with somatic physical manifestations and some compulsive behaviors. He is also socially withdrawn and clearly unable to hold employment. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran's claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107(a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In this case, the evidence supports a 100 percent rating ORDER Entitlement to a 100 percent rating for PTSD is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND Low Back Disability and Peripheral Neuropathy of the Lower Extremities As noted above, the claim of service connection for low back disability is on appeal based on the merits of the claim. There is medical evidence of current disability. New service flight records have been associated with the claims file and also document that he was awarded combat time. There is lay evidence from the Veteran and his service buddy that he was involved in an least one helicopter crash during service during which he claimed his low back was initially injured. There are service treatment records documenting complaints of low back pain. In October 2009, a VA examiner opined that current low back disability was unrelated to service, but the VA examiner did not consider whether the Veteran's low back disability is etiologically related to his involvement in a helicopter crash which is his contention. Thus, an addendum medical opinion is necessary. The Veteran claimed that he has peripheral neuropathy of the lower extremities due to the low back disability; thus the low back disability issue must be initially resolved prior to considering the secondary service connection issue. Compensation under 38 U.S.C. § 1151 An October 2009 VA examination indicated that the Veteran has cutaneous scarring following cryotherapy to the flexor surface of the distal aspect of the left third finger proximal phalanx with post treatment reflex sympathetic dystrophy and mild flexor tendonitis. The examiner opined that the scarring was a foreseeable consequence of the surgery. However, it was the Veteran's contention that the additional residual disability consisted of pain which he competently and credibly reported. Thus, an addendum medical opinion should be obtained to determine if the Veteran's residual pain as either due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care, medical or surgical treatment; or was due to an event not reasonably foreseeable. TDIU With regard to a TDIU, the aforementioned issues should be resolved prior to adjudication of this matter. As noted above, a 100 percent rating has been assigned for the Veteran's PTSD, but an effective date has not been assigned by the RO, so that matter must also be resolved. With regard to the period when a 100 percent rating is assigned, the 100 percent evaluation does not necessarily render the claim for a TDIU moot. VA has a "well-established" duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The Board notes that the receipt of a 100 percent disability evaluation for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU. Bradley (holding that a TDIU rating may still form the basis for assignment of special monthly compensation (SMC) under 38 U.S.C. § 1114 (s)). Accordingly, the case is REMANDED for the following actions: 1. Obtain a VA addendum medical opinion with regard to the low back. The examiner should review the record. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that a low back disability had its clinical onset during service or is related to any in-service disease, event, or injury to specifically include a helicopter crash. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 2. Obtain a VA addendum medical opinion with regard to the 38 U.S.C. § 1151 claim. The examiner should review the record. The examiner should provide an opinion as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's residual pain following the surgical procedure was: (1) the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the hospital care or medical or surgical treatment; (2) Did VA fail to exercise the degree of care that would be expected of a reasonable health care provider; and (3) Was the proximate cause of the additional disability an event not reasonably foreseeable. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. 3. Review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner for completion of the inquiry. 4. Readjudicate the claims on appeal in light of all of the evidence of record, and for the TDIU claim, considering Buie and Bradley. If any issue remains denied, the Veteran should be provided with a supplemental statement of the case as to any issue remaining on appeal, and afforded a reasonable period of time within which to respond thereto. 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. §§ 5109B, 7112 (2012). ______________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs