Citation Nr: 18143162 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 16-24 700A DATE: October 18, 2018 ORDER Entitlement to a rating in excess of 10 percent for a right foot disability, due to residuals of a through and through gunshot wound, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s right foot disability prevented prolonged weightbearing and caused difficulty using stairs and ladders, indicating a moderate level of disability. 2. Throughout the appeal period, the Veteran’s right foot disability did not manifest symptoms indicating a moderately severe or greater level of disability. 3. Throughout the appeal period, the Veteran’s service-connected disability precluded substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for a right foot disability due to the residuals of a through and through gunshot wound, have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.56, 4.71a, 4.73, Diagnostic Codes 5284, 5310 (2017). 2. Throughout the appeal period, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.2, 4.3, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to July 1970.. This matter is before the Board of Veterans’ Appeals (Board) on appeal of January 2011, November 2011, and July 2013 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). The Veteran is service connected for posttraumatic stress disorder (PTSD) and right foot residuals of a gunshot wound. Service connection was initially allowed for these disabilities in January 1983. Currently, there is no claim for increased rating for PTSD on appeal. In August 2006, the Veteran filed a claim seeking an increased rating for PTSD. The Veteran filed a July 2007 VA form 9 indicating he sought a 70 percent disability rating for PTSD. A rating decision of July 2010 allowed a 70 percent disability rating and a January 2011 rating decision continued this evaluation. The Veteran did not appeal, no new evidence was provided within one year of the January 2011 rating decision, and the determination became final. A new claim for an increased rating for PTSD was filed in March 2012. The claim was denied by a February 2015 rating decision. The Veteran initially filed a notice of disagreement ( NOD ) but did not perfect his appeal after an April 2017 statement of the case (SOC). Thus, the issue of an increased rating, in excess of 70 percent, for PTSD is not before the Board. 1. Entitlement to a rating in excess of 10 percent from July 29, 2010 for a right foot disability due to residuals of a through and through gunshot wound Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. 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. § 5107(b); 38 C.F.R. § 4.3. Where a claimant appeals the denial of a claim of an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different, or “staged,” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Veteran is service-connected for a right foot disability due to the residuals of a through and through gunshot wound with secondary fracture of the first metatarsal. This disability is rated, based on loss of function in muscle group X related to movements of the forefoot and toes, under diagnostic codes (DC) 5284-5310. Under DC 5310 a slight injury is noncompensable; a moderate injury 10 percent disabling, a moderately severe injury is 20 percent disabling, and a severe injury is 30 percent disabling. Per the note associated with DC 5310, the minimum rating for through-and-through wounds of the foot is 10 percent. See 38 C.F.R. § 4.73 (DC 5310). A moderate muscle disability results from a through-and-through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. In the case of a moderate disability, the veteran manifests consistent complaints of one or more of the cardinal signs and symptoms of a muscle disability, particularly a lowered fatigue threshold. Some loss of deep fascia or muscle substance or impairment to muscle tonus and loss of power or lowered threshold of fatigue is expected. 38 C.F.R. § 4.56(d)(2). A moderately severe muscle disability results from a through-and-through or deep penetrating wound with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Records should indicate hospitalization for a prolonged period for treatment of the wound and consistent complaints of cardinal signs and symptoms of muscle disability with evidence of an inability to keep up with work requirements. A moderately severe disability also requires indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side; and tests of strength and endurance compared with the sound side demonstrating positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). A severe muscle disability results from through-and-through or deep penetrating wound with extensive debridement, prolonged infection, sloughing of soft parts, and intermuscular scarring and binding. It requires ragged, depressed and adherent scars; loss of deep fascia or muscle substance or soft flabby muscles in the wound area; and severe impairment on tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side. 38 C.F.R. § 4.56(d)(4). The cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). At the December 2010 examination, the examiner noted a healed gunshot wound with a healed fracture of the first metatarsal. The Veteran reported pain, swelling, redness, stiffness, fatigability, weakness and lack of endurance while standing and walking. The examiner found the right foot disability prevented prolonged weight bearing (over one hour) and caused difficulty with stairs and ladders due to perceived weakness and instability. At the June 2013 examination, the Veteran reported pain when walking on tip toes and some numbness. Arthritis was noted at the site of the healed metatarsal fracture. The examiner again determined the right foot injury prevented prolonged weight bearing and caused difficulty with stairs and ladders. Both the December 2010 and June 2013 examiners noted the presence of additional non-service-connected foot conditions of hallux valgus and clawfoot, but separately identified symptoms related to the residuals of the gunshot wound in evaluating the disability. The Board finds cardinal signs of muscle disability, pain and weakness are present. However, no evidence loss of deep fascia, muscle substance, or normal firm resistance of muscles, or any other indicia of a moderately severe or higher level of disability is present. Accordingly, the preponderance of the evidence is against a rating in excess of 10 percent for any portion of the period on appeal. 2. Entitlement to a total disability rating (TDIU) based on individual unemployability due to service-connected disabilities TDIU may be assigned where the schedular rating is less than total if it is found that the claimant is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) 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. § 4.16(a). In determining entitlement to a TDIU, the central inquiry is “whether the Veteran’s service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment includes occupation incapable of producing income that is more than marginal and occupation where earned annual income exceeds the poverty limit but is done so in a protected environment such as a family business or sheltered workshop. Id; see also, Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate issue of whether TDIU should be awarded is not a medical issue, but is a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2015). The Veteran submitted a claim for TDIU on July 29, 2010. Veteran is service connected for posttraumatic stress disorder and a right foot injury. His PTSD has been rated as 70 percent disabling since August 31, 2006. Thus, the schedular requirement for TDIU has been met since that date. In an August 2009 letter, the Veteran’s VA readjustment counseling therapist, N. H., describes the Veteran’s history of difficulty working with others. These difficulties lead him to work as a self-employed house painter. The Veteran reported in an August 2009 VA PTSD examination that he stopped working full time as a painter in 2007. He continued to work on small jobs with nonconfrontational customers. The Veteran’s August 2011 statement explains that he turned his business over to his stepson and then performed occasional work estimating or setting up jobs. A Profit or Loss from Business tax document from 2010 is of record and shows a net profit for the Veteran of $1,517.00 from a painting business. The Veteran’s March 2012 statement describes an attempt to work as a painter in October 2010. At that time, he experienced difficulty with his balance and fell off a ladder and suffered a shoulder injury. Initially, after resolving all doubt in favor of the Veteran, the Board finds the preponderance of the evidence shows the Veteran had no more than marginal employment after 2007 when he stopped working full time as a painter. Although he did some occasional small jobs for select customers and assisted his stepson, this amounted to no more than marginal employment and did not equate to substantially gainful employment. The Board must determine whether the Veteran has been able to obtain or maintain substantially gainful employment during the course of the appeal. Records related to the Veteran’s February 2011 application for VA Vocational Rehabilitation and Employment services are of record. A March 2011 letter from a VA counselor denied his application and stated, “it is not reasonable to expect you to gain or maintain a suitable job at this time.” The counselor cited, “[t]he combined effects of prolonged unemployment, local high unemployment rates, physical limitations, and chronic PTSD symptoms” as making employment “very unlikely.” A May 2011 letter from a retired VA counselor reports that the Veteran has difficulty with balance due to his PTSD medications. The counselor further opined that the Veteran was unable to work due to his “diminished psychological and physical abilities brought on by [PTSD]”. A February 2012 letter from VA readjustment counselor, V.P., described the Veteran’s past history of alcohol abuse and a 2004 suicide attempt. She related that the Veteran’s suicide attempt brought him to seek treatment for PTSD and alcohol abuse. The Veteran initially continued working while trying to manage his mental health issues. However, he had numerous relapses and chose to leave his business and focus on healing. In particular, the counselor observed that the Veteran had difficulty managing stress and interacting with others. When he stopped working, he was able to minimize this stress. She opined that working would be detrimental for the Veteran as his sobriety and mental health depended on continued medication, counseling, AA meetings, and reduced environmental stress. A December 2010 VA PTSD examination documented the Veteran had difficulty sleeping, mild memory impairment, intrusive thoughts, poor problem-solving skills, avoidance, isolation, and difficulty with confrontation. The examiner noted that the Veteran “has limited social skills and ability to interact comfortably with others.” The Veteran felt he was unable to drive safely because of his impaired concentration. The examiner noted significant PTSD symptoms but opined the Veteran was not incapable of securing or maintaining substantially gainful employment. He observed the Veteran would be best suited for employment with “loose supervision and minimal contact with co-workers or customers.” A June 2013 VA PTSD examination described the Veteran as “doing well.” Medications were helping with depression and sleeplessness and attendance at group therapy was alleviating the Veteran’s guilt. The Veteran also benefited from attending Alcoholics Anonymous meetings. The examiner noted difficulty with concentration and observed that irritability, depressed mood, and anxiety would have a negative impact on his ability to work. This examiner concluded that the Veteran’s PTSD symptoms were stable and did not prevent “him from obtaining and maintaining substantially gainful employment.” VA mental health treatment notes from March 2014 and May 2015 document continued PTSD treatment and the use of medications. In March 2014, the Veteran reported 5 years of sobriety. He was not working but helped his family with projects. He continued to have nightmares. His treatment provider recommended he participate in pleasurable activities and avoid stressors. In May 2015 the Veteran continued to have difficulty sleeping. He was noted to be “enjoying retirement” and having “social activities with his wife and friends.” In a June 2017 statement, the Veteran’s wife described him as being easily overwhelmed and frustrated, nervous and edgy, defensive in social interactions and prone to react with anger or by shutting down when conflicts arise. He sometimes isolated himself from others for days. She reported his behavior caused problems in his employment. A June 2017 statement from his longtime friend, J.H., described employment difficulties related to the Veteran’s anger and difficulty working with others. He also described the Veteran as either responding in anger or by shutting down during social interactions. S.B., a vocational consultant, provided February 2018 opinion that the Veteran is unable to obtain and maintain substantially gainful employment due to his PTSD and right foot disability. She reviewed medical evaluations of the Veteran’s PTSD and observed that he would have an unacceptable level of absenteeism and would be frequently off task in an employment setting due to his PTSD symptoms. In summary, the Veteran has a foot disability which limits his ability to bear weight for long periods and causes instability on stairs and ladders. Further, he has difficulty with balance due to prescribed PTSD medications. Letters from the Veteran’s wife and friend describe his history of employment difficulties related to his inability to handle stressful situations. December 2010 and June 2013 VA examinations and other treatment records document improvement and increased stability of the Veteran’s PTSD symptoms. These medical evaluations were completed after the Veteran stopped working. There is no evidence that the Veteran has any skills or training to begin working in a new field. Switching to a new career would require interacting with others to train and acquire necessary skills. The Board gives great weight to the February 2012 VA counselor’s letter, which explains the Veteran’s improved mental health and stability was achieved through limiting stress, particularly the stress from employment. It is likely that any increased stress from returning to work or retraining will result in increased PTSD symptoms. (Continued on the next page)   Resolving all reasonable doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise with respect to the issue of whether the Veteran is capable of obtaining and maintaining substantially gainful employment; thus, TDIU is warranted from July 29, 2010. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeanne Celtnieks, Associate Counsel