Citation Nr: 18143345 Decision Date: 10/18/18 Archive Date: 10/18/18 DOCKET NO. 04-19 622 DATE: October 18, 2018 ORDER Entitlement to service connection for low back strain with degenerative disc disease, claimed as a lower back disability is granted. Entitlement to service connection for a skin disability, claimed as dermatitis and seborrheic keratosis, is granted. Entitlement to a rating higher than 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total rating based on individual employability due to service-connected disability prior to April 7, 2016 is granted. REMANDED Entitlement to service connection for a colon disability, including as due to herbicides exposure and secondary to service-connected PTSD, is remanded. FINDINGS OF FACT 1. Resolving all doubt in the Veteran’s favor, a lower back disability was incurred as a result of service. 2. The evidence is at least in equipoise as to whether the Veteran’s skin disability had its onset during active service. 3. The Veteran’s PTSD symptoms have been productive of no more than occupational and social impairment with deficiencies in most areas; PTSD resulting in total occupational and social impairment is not shown. 4. Resolving all doubt in the Veteran’s favor, prior to April 7, 2016, but not earlier than August 29, 2011, the Veteran’s service-connected PTSD rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for lower back disability have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. 2. The criteria for entitlement to service connection for a skin disability, have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. 3. The criteria for entitlement to a rating higher than 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code (Code) 9411. 4. The criteria for entitlement to a TDIU prior to April 7, 2016 but not earlier than August 29, 2011, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from March 1964 to March 1968. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred or aggravated during active military service. 38 U.S.C. §§ 1110, 1131. Generally, service connection requires (1) the existence of a present disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Certain disabilities, including arthritis, are presumed to be serviced connected if manifested to a compensable degree within one year following service. 38 C.F.R. §§ 3.303, 3.307, 3.309. VA regulations provide that certain diseases associated with exposure to herbicide agents may be presumed to have been incurred in service even if there is no evidence of the disease in service, provided the requirements of 38 C.F.R. § 3.307 (a)(6) are met. 38 C.F.R. § 3.309(e). Lower Back Disability The Veteran contends service connection is warranted for lower back disability because he injured his back in service when he fell about 18 feet through an opened hatch into the engine room and landed on steel deck plates. (See January 2018, Hearing Transcript, p.3). The Veteran’s current back disability is diagnosed as lumbar contusion and strain with degenerative disc disease (DDD)/degenerative joint disease (DJD). His assertion that he fell through an opened hatch to the engine room in service is recorded in his service treatment records dated in February 1968. Such records, however, are negative for any mention of injury to his back that resulted from the fall. His February 1968 separation medical examination report shows his spine and other musculoskeletal were normal on clinical evaluation. This case presents evidence in favor of and against the Veteran’s claim for service connection for a lower back disability. Lay statements proffered by the Veteran, his family member, former supervisor, and a fellow serviceman support his claim. The medical evidence is conflicting. An April 2016 VA back examination report provides a negative nexus opinion. While the April 2016 VA examiner provided rationale for the opinion reached, the examiner did not consider the lay assertions concerning post-service symptoms. Specifically, the examiner’s opinion did not acknowledge or address the Veteran’s long-standing assertion that he experienced continuous back pain since service. The medical evidence in support of the Veteran’s claim consists primarily of an October 2006 private chiropractor’s opinion, which provides a positive nexus supporting findings of an initial back injury in service related to the Veteran’s current claimed lower back disability. The private chiropractor provided a thorough rationale to support the conclusions drawn, including reconciling the Veteran’s prior history of injuries to the lower back and fully explaining why current findings are consistent with the type of “axial loading injury” to the lower back sustained in a fall landing on his rear in service. The Board finds the evidence in this case is in relative equipoise, and, after resolving all doubt in the Veteran’s favor, service connection is found to be warranted for low back strain with degenerative disc disease, claimed as a lower back disability. This claim is thus granted in full. 38 U.S.C. § 5107(b). Skin Disability The Veteran claims service connection for dermatitis, psoriasis and seborrheic keratosis, contending these skin disorders are a result of exposure to Agent Orange while serving in Vietnam. Considering the various diagnoses, the Board has recharacterized the issue to entitlement to service connection for a skin disability to include all diagnosed skin disorders. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran contends his skin disability is due to exposure to Agent Orange. Specifically, he asserts that while he occupied patrol boats in Vietnam, planes flew overhead and dumped Agent Orange into the boats. He stated “And, we’d usually jump in the water and try to wash it off, and rinse off with fresh water. But, I believe it did something to my skin.” The Veteran has current diagnoses of nonspecific dermatitis, psoriasis and seborrheic keratosis. Nonspecific dermatitis is characterized by a fine granular rash to the upper chest and back, abdomen, upper arms and lower legs. Sebopsoriasis involves the Veteran’s scalp with patches of erythema and overlying silvery scale to his right temple area and seborrheic dermatitis is evidenced by thick scaling with mild underlying erythema to his bearded area. The Veteran’s service treatment records document complaints and treatment for an infected blister of his lateral ankle, right side in 1964. In 1965 he had cellulitis of the small finger, right hand following blister. An abrasion of the right hand and wart of the right middle finger and left hand were shown in 1966. Regarding a nexus to service, the November 2014 VA examiner found that it was unlikely that the Veteran’s current skin disability is related to any of his previously treated skin disorders during military service and his Agent Orange exposure is not considered a risk for chronic dermatitis, sebopsoriasis, or seborrheic dermatitis. In view of the totality of the evidence, including the recognition of in-service complaints and treatment of skin disorders of the upper and lower extremities, and the competent and credible lay assertions that the Veteran has had a skin disability since service, the Board finds that the evidence is at least in relative equipoise regarding this issue. When the evidence is in relative equipoise, the benefit of the doubt doctrine provides that such reasonable doubt will be resolved in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Service connection for a skin disability is therefore warranted. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings[.]” See Hart v. Mansfield, 21 Vet. App. 505 (2007). PTSD The Veteran’s service-connected PTSD is currently assigned a 70 percent rating under 38 C.F.R. § 4.130, Code 9411, which refers to the General Rating Formula for evaluating psychiatric disabilities other than eating disorders. See 38 C.F.R. § 4.130. The 70 percent rating contemplates 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 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; 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability by demonstrating the symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board notes that the Veteran has also been diagnosed with alcohol use disorder, in early remission. However, the medical evidence in this case does not distinguish between psychiatric symptoms related to PTSD from the alcohol use disorder because it is in remission and no longer causing impairment. As such, the Board has considered all the Veteran’s psychiatric symptoms in evaluating his service-connected PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998). A March 2016 VA-contract examination report shows the Veteran experienced depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. He reported he has three grown children, who he talks with about once a month and sees infrequently. He has an uncle who lives nearby who he sees about once a week. He sees his sister once every year or two. He stated that he is easily irritated with people and does not associate much. He has a couple of friends who he gets together with about once a month to talk or watch football. His activities include watching television, going out and driving around, and runs errands most days to pick-up mail and basic supplies. The examiner rendered diagnoses of PTSD and alcohol use disorder, in early remission. During the evaluation, the Veteran stated that, overall, he was doing about the same as he was when he underwent a VA examination in 2011. The examiner noted the Veteran may have been worse during the 2011 examination because he was drinking at the time and had been for years. At the current examination he was not having many of the issues he was having back in 2011. For example, he was not having 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 spatial disorientation, neglect of personal appearance, and hygiene. Based on the foregoing, the Board does not find the Veteran’s PTSD results in total occupational and social impairment. There has not been a manifestation of any symptoms that warrant assignment of the next higher rating of 100 percent, such 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, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. Regarding a total occupational impairment, the Veteran has been awarded a TDIU rating on the basis that his PTSD and other service-connected disabilities preclude substantially gainful employment. The 100 percent disability level for PTSD, however, requires a total social and occupational impairment resulting from the enumerated symptoms. Total social impairment is not shown, as the Veteran continues to maintain a relationship with his adult children, an uncle who lives nearby, his sister and some friends as reported during VA examination in March 2016. Based on the foregoing, the Board finds that a rating higher than 70 percent for the Veteran’s service-connected PTSD is not warranted at any point during the pendency of the claim. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). TDIU The Veteran claims entitlement to TDIU prior to April 7, 2016, the current effective date of the grant. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is warranted where the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, because of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total and when the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided, however, that if there is only one such disability, it must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the rating to 70 percent or more. 38 C.F.R. § 4.16(a). Prior to April 7, 2016, service connection was in effect for PTSD rated 70 percent, coronary artery disease rated 30 percent, and type 2 diabetes mellitus rated 20 percent. The combined rating was 80 percent effective from November 12, 2010 and 90 percent from May 6, 2014. The Veteran met the percentage requirement for a TDIU under 38 C.F.R. § 4.16(a) prior to April 7, 2016 with a combined rating of 80 percent since November 12, 2010 and 90 percent since May 6, 2014. This includes the 70 percent rating for PTSD, which has been in effect since October 30, 2007. Thus, the combined disability rating meets the criteria for award of a schedular TDIU because there is one disability, PTSD, rated at 60 percent or more. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. On August 2011, the Veteran submitted an application for increased compensation based on unemployability. The application noted that his service-connected PTSD prevented him from securing or following any substantially gainful occupation. He last worked full-time and became too disabled to work in February 2009. He last worked as a custodial director. His education background consists of completing one year of high school and he had no other education or training before he was too disabled to work. The Board finds that the Veteran’s PTSD symptoms have precluded gainful employment for the period prior to April 7, 2016, but not earlier than August 29, 2011, the date his application for TDIU was received at the agency of original jurisdiction. His anxiety, panic attacks and anger as reported in a January 2011 VA outpatient treatment report, would negatively impact relationships with co-workers and with subordinate personnel. Other evidence of record presents findings that the Veteran was not rendered unemployable because of his service-connected PTSD, but that his unemployability was due to physical disabilities, especially his back, which was not service-connected prior April 7, 2016. The Board finds that such evidence does not address the impact service-connected disabilities, especially PTSD, have on his ability to engage in employment. Here, the Board has determined that the evidence is at least in equipoise. The specific clinical findings of PTSD symptoms, along with an initial rating of 70 percent for PTSD and the Veteran filing a claim for TDIU with evidence he had not worked since February 2009 due to PTSD, suggest that the evidence is at least in relative equipoise. Accordingly, resolving reasonable doubt in the Veteran’s favor, entitlement to TDIU is granted prior to April 7, 2016 but not earlier than August 29, 2011, the date his application for TDIU was received at the agency of original jurisdiction. REASONS FOR REMAND A September 2012 private pathology report shows diagnoses of colon polyp and colon ulcer. The Veteran claims his colon disability is due to exposure to herbicides in Vietnam or secondary to his service-connected PTSD. He has not been afforded an examination to determine whether there is an association with dioxin exposure and his current colon disability or a relationship between his colon disability and his service-connected PTSD. The claim is remanded to afford the Veteran an examination to evaluate the nature and etiology of his colon disability. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records relating to the Veteran’s treatment for a colon disability. 2. Schedule the Veteran for an examination by an appropriate VA examiner to determine the nature and etiology of his colon disability. The claims file must be reviewed, and all appropriate tests and studies should be conducted. The examiner is asked to: (a) provide a clear diagnosis of the Veteran’s claimed colon disability; (b) identify the most likely etiology for the Veteran’s colon disability; specifically, is at least as likely as not (50 percent or greater probability) that such disability is related to an in-service injury, event, or disease, including exposure to herbicide agents (Agent Orange). It should be noted that it is not sufficient to merely state that the condition is not presumptively caused by exposure to herbicide agents; (c) determine whether the Veteran’s colon disability is at least as likely as not proximately due to or aggravated by any service-connected disability, to include PTSD. A complete rationale for all opinions must be provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Young, Counsel