Citation Nr: 18143096 Decision Date: 10/18/18 Archive Date: 10/17/18 DOCKET NO. 14-16 735 DATE: October 18, 2018 ORDER Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for the Veteran’s peripheral neuropathy right lower extremity is granted. Subject to the law and regulations governing payment of monetary benefits, a 20 percent rating for the Veteran’s peripheral neuropathy left lower extremity is granted. Subject to the law and regulations governing payment of monetary benefits, a 10 percent rating for service-connected right ulnar neuropathy is restored. Subject to the law and regulations governing payment of monetary benefits, a 70 percent rating for posttraumatic stress disorder (PTSD) is granted. Subject to the law and regulations governing payment of monetary benefits, a TDIU is granted. FINDINGS OF FACT 1. The evidence demonstrates that the Veteran’s peripheral neuropathy right lower extremity has been productive of moderate incomplete paralysis. 2. The evidence demonstrates that the Veteran’s peripheral neuropathy left lower extremity has been productive of moderate incomplete paralysis. 3. The VA examination upon which the reduction of the rating for right ulnar neuropathy was based did not show actual improvement in his right ulnar neuropathy, or his improvement in his ability to function under ordinary conditions of life and work. 4. The evidence demonstrates that the Veteran’s PTSD has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas. 5. It is reasonably shown that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but no higher, for peripheral neuropathy right lower extremity have been met. 38 C.F.R. § 4.124a (2012), Diagnostic Code 8520 (2017). 2. The criteria for entitlement to a 20 rating, but no higher, for peripheral neuropathy left lower extremity have been met. 38 C.F.R. § 4.124a (2012), Diagnostic Code 8520 (2017). 3. The criteria for restoration of a 10 percent rating for service-connected right ulnar neuropathy, effective October 1, 2015, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.344, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8616 (2017). 4. The criteria for entitlement to a 70 percent rating, but no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16 (2017). 5. The criteria for entitlement to a TDIU are met. 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1967 to July 1972, including service in the Republic of Vietnam from April 1970 to February 1971.. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).] 1. Entitlement to a rating in excess of 10 percent for peripheral neuropathy right lower extremity and left lower extremity. The Veteran asserts that he is entitled to a 20 percent rating for his service-connected peripheral neuropathy right lower and left lower extremity, currently rated at 10 percent for each extremity. The Veteran’s peripheral neuropathy of the right and left lower extremities are rated under 38 C.F.R. § 4.124a, Diagnostic Code 8620. Diagnostic Code 8620 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, DC 8620. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. Id. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. At the April 2011 Examination, the examiner noted the Veteran had moderate intermittent pain in his right and left lower extremities, moderate numbness in his right and left lower extremities and moderate paresthesias and/or dysesthesias in his right and left lower extremities. The Veteran stated that his feet feel cold and numb all the time. The November 2012 primary care notes reflect the Veteran stated his neuropathy was getting worse. He indicated that his lower extremities will become numb and remain numb for 15-30 minutes. The Veteran stated he had been on medication “off and on” to treat his symptoms. The February 2013 VA examiner indicated the Veteran’s peripheral neuropathy right lower and left lower extremity symptoms were mild. The January 2014 Diabetic Sensory-Motor Peripheral Neuropathy Examination, the examiner noted the Veteran had moderate paresthesias and/or dysesthesias right lower and left lower extremities. At that examination, the Veteran reported that his feet are always asleep; that’s “constant on the bottoms”. In the Veteran’s August 2018 VA-214138, Statement in Support of the Claim, he reported that his feet have been “numb forever”. Additionally, he stated, his feet aren’t comfortable when he walks or stands and that it feels like he is walking on “stubs”. He reported that the feeling is “all the time.” He can get around but indicated that his feet don’t feel right. The Board finds that the medical evidence shows that the Veteran’s symptoms more nearly approximate to moderate incomplete paralysis of the sciatic nerve. Accordingly, the Board finds that a rating of 20 percent is warranted for peripheral neuropathy of the right lower and left lower extremity. Entitlement to a compensable rating for right ulnar neuropathy, to include propriety of reduction from 10 percent to 0 percent, effective October 1, 2015 The provisions of 38 C.F.R. § 3.105 (e) allow for the reduction in evaluation of a service-connected disability when warranted by the evidence, but only after following certain procedural guidelines. The RO must issue a rating action proposing the reduction and setting forth all material facts and reasons for the reduction. The veteran must then be given 60 days to submit additional evidence and to request a predetermination hearing. Then a rating action will be taken to effectuate the reduction. 38 C.F.R. § 3.105 (e). The effective date of the reduction will be the last day of the month in which a 60-day period from the date of notice to the veteran of the final action expires. 38 C.F.R. § 3.105 (e), (i)(2)(i). 38 C.F.R. § 3.344 provides that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation. It is essential that the entire record of examination and the medical-industry history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations which are less thorough than those on which payments were originally based will not be used as a basis for reduction. Ratings for diseases subject to temporary or episodic improvement (e.g., manic depressive or other psychotic reaction), will not be reduced on the basis of any one examination, except in those instances where all of the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, where material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life and work. 38 C.F.R. § 3.344 (a); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Historically, a February 2009 rating decision granted the Veteran service connection for right ulnar neuropathy, with an evaluation of 10 percent, effective October 16, 2007. In March 2014, the Veteran was notified of the proposal to reduce the prior evaluation of his service-connected right ulnar neuropathy from 10 percent to 0 percent. See March 2014 Veterans Claims Assistance Act (VCAA). A July 2015 rating decision reduced the evaluation of the right ulnar neuropathy from 10 percent to 0 percent, effective October 1, 2015. Thus, the Board finds that the RO satisfied the requirement of allowing at least a 60-day period to expire before assigning the effective date of reduction. The Veteran seeks restoration of the 10 percent rating for his service-connected ulnar neuropathy. In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the disability had demonstrated actual improvement. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). In order for a rating reduction to be sustained, it must be shown by a preponderance of the evidence that the reduction was warranted. Sorakubo v. Principi, 16 Vet. App. 120 (2002). The April 2011 VA examination and February 2013 VA examinations acknowledge the January 2009 diagnosis of right ulnar neuropathy at the elbow. The April 2011 VA examination does not indicate the Veteran exhibited right upper neuropathy symptoms. The February 2013 VA examiner described the Veteran’s symptoms as intermittent but not present the day of the examination. Neither the April 2011 VA examiner nor February 2013 VA examiner specified whether the symptoms resolved. At the Veteran’s November 2012 six-month clinic visit, the Veteran indicated that his neuropathy was getting worse. He stated that when he is watching television, he notices that his hands go numb, and it progresses up his arms, and it remains numb for 15-30 minutes. The Veteran indicated that the on-set of his numbness in his hands and arms has been ongoing for years. He added that his hands get cold really fast and turn white. The January 2014 VA examiner noted, the January 2009 evidence of mild ulnar compressive neuropathy at the elbow. The examiner diagnosed mild paresthesias and/or dysesthesias of the right upper extremity. The Veteran described his arms “going to sleep when he is laying in bed, driving, or standing still. He indicated his condition has been present for the past few years. After a review of the record, the Board finds that the evidence does not show that the Veteran’s right ulnar neuropathy clearly materially improved and that the improvement would be maintained under the ordinary conditions of life and work. See Murphy v. Shinseki, 26 Vet. App. 510, 517 (2014); Faust v. West, 13 Vet. App. 342, 349 (2000); Brown v. Brown, 5 Vet. App. 413, 421 (1993) (citing 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13 (1992)). The Board notes that the findings have been relatively consistent throughout the appeal, and the Veteran consistently complained of numbness in his right upper extremity and the need to take medication to treat his nerve symptoms. As such, the reduction will not be sustained, and the 10 percent rating for right ulnar neuropathy is restored. 2. Entitlement to a rating in excess of 30 percent for posttraumatic stress disorder (PTSD) The Veteran asserts that he is entitled to a rating in excess of 30 percent for his service-connected PTSD. PTSD is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9411. A 30 percent rating is assigned where 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 behaviour, 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). A 50 percent rating is warranted where there is an 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 rating is warranted where there is an 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating contemplates 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; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). In August 2010, the Veteran submitted a VA Form 21-8940, stating that his PTSD prevents him from securing or following any substantially gainful employment. This was considered a claim for increase in his service-connected PTSD. The evidence supports a finding that the Veteran’s disability picture for PTSD has more nearly approximated occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) for the appeal period. The frequency, severity, and duration of the Veteran’s impairment and assessing his disability picture, the Board finds that the preponderance of evidence demonstrates that disability due to the Veteran’s psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See Vazquez–Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 “indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas.”). Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports an initial 70 percent disability rating for the Veteran’s PTSD. The record shows that for the relevant part of the appeal period, the Veteran PTSD symptomatology included suicidal thoughts. The July 2012 Outpatient initial mental health assessment, reflects the Veteran had “chronic passive suicidal thoughts”. The examiner noted, the Veteran has many thoughts but currently no specific time or motivation to carry them out. At that assessment, the Veteran indicated he planned to take his own life but his kids have his pistols. He stated he thought about kissing a big truck while riding my motorcycle but he wants to be around his grandchildren and doesn’t want to wreck his bike. The examiner indicated the suicidal thoughts are occasional and he is currently able to move away from them. The Veteran also reported suicidal ideation at his February 2013 VA examination. The examiner noted, the Veteran experiences suicidal ideation with no intent to harm himself due to concerns about leaving his family behind. In the Veteran’s August 2018 statement in support of claim, he stated he has bad days where he just cries. He tries to stay off social media because there is a lot on there that reminds him of Vietnam. Smells, helicopters and loud noises trigger him. When he is triggered, he retreats to his room and drinks alone all day. He states he goes days without changing his clothes but on a good week, he will shower three times a week. The preponderance of the evidence shows that Veteran has not exhibited total social impairment for the relevant portion of the appeal period. The Veteran reported having a special relationship with his 2-year-old granddaughter and his son. He has a friend that lives in Florida. He cleans, does laundry, shops, drives and manages his own finances. He can prepare meals. The examiner determined that the Veteran can complete simple and well known complex tasks. See February 2013 VA examination. The Board concludes that the Veteran’s symptoms do not manifest to the degree required for a 100 percent rating as the competent and credible medical evidence of record does not indicate total occupational and social impairment. 3. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU). The Veteran’s claim for a TDIU was received in August 2010. The Veteran asserts that due to his service-connected disabilities he is unable to secure or follow a substantially gainful employment. The Veteran lists 2003 as the last year he was employed full-time. On his April 2003 Application for Disability Insurance Benefits, the Veteran listed March 18, 2003 as the date he became unable to work due to his disabling condition. In January 2012, the Veteran submitted a vocational evaluation. The vocational expert opined that while not all of the Vet’s disabilities are vocationally significant, the ones that are, are severe enough to preclude competitive employment. He noted the lack of concentration caused by the Veteran’s PTSD and the intermittent periods of inability to perform occupational tasks a totally disabling feature on its own. There is the inability to sit or stand for long periods due to peripheral neuropathy in both feet. This would eliminate many jobs even at the sedentary level. Further, the Veteran would not be expected to stand for long periods on a hard surface, or even sit behind a desk for long periods of time. See January 2012 Vocational Assessment. Given the evidence regarding the severity of the Veteran’s service-connected disabilities, the opinions of record, and the evidence of record indicating the Veteran’s functional limitations due to her service-connected disabilities, and in light of her individual work experience and training, the Board finds that the evidence shows she is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, entitlement to a TDIU is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jacquelynn M. Jordan, Associate Counsel