Citation Nr: 18143825 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 14-15 872 DATE: October 23, 2018 ORDER Entitlement to an initial rating greater than 50 percent for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for a skin disability of the feet, to include tinea pedis is remanded. Entitlement to a compensable rating for an abdominal scar, following hernia repair is remanded. Entitlement to a total disability rating for individual unemployability (TDIU) due to service connected disabilities is remanded. FINDING OF FACT For the entire rating period on appeal, the Veteran’s PTSD has been manifested by occupational and social impairment with reduced reliability. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1965 to August 1967. The Board of Veterans’ Appeals (Board) notes that this case was previously remanded in October 2017. It now returns for further appellate review. While this appeal was pending, an August 2018 rating decision granted a 10 percent rating for an abdominal scar, status post-hernia repair. As the Veteran was seeking a compensable rating which was granted during the appeal, this issue is no longer before the Board. See Appellate Brief (seeking compensable rating). The Board notes that the record raises the issue of unemployability, i.e. the determination as to whether the Veteran is entitled to a TDIU is part and parcel of the determination of the increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board has jurisdiction over the TDIU claim as a part of his increased rating claim and has separately captioned this issue. 1. Increased Rating The Veteran contends that he is entitled to a higher initial rating for his service-connected PTSD than is reflected by the current 50 percent rating assigned. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995); 38 C.F.R. § 4.1. A 70-percent rating is warranted when there is 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 warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under Section 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 117. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). The amendments replace those references with references to the recently published Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). This claim is governed by the DSM- 5. As with all claims for VA disability compensation, the Board must assess the credibility and weigh all the evidence, including lay and medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert denied, 523 U.S. 1046 (1998). Factual Background The Veteran was first diagnosed with PTSD in September 2011. See September 2011, VA Primary Care – Mental Health Consult. The Veteran endorsed anxiety and depression, difficulty sleeping, difficulty concentrating, and avoidance of social interactions. Id. He reported that he is married but does not live with his wife. He also stated he lived with different friends and had no permanent home. The mental status examination (MSE) showed he was alert and oriented in four spheres, had slow speech, and presented with depressed and anxious mood. Id. He also noted to have flat affect, logical thought process, and displayed no hallucinations, or delusions. The Veteran denied having any homicidal or suicidal ideations. Id. The Veteran was prescribed citalopram for PTSD and depression. In December 2012, the Veteran was afforded a VA examination in connection with his psychiatric service connection claim. See December 2012 VA Initial PTSD Disability Benefits Questionnaire (DBQ). The Veteran was assessed with PTSD and the examiner found that the Veteran’s PTSD caused occupational and social impairment with reduced reliability and productivity. Id. The Veteran was noted to be alert with poor eye contact. The MSE revealed no hallucinations and suicidal or homicidal ideations. His affect was restricted, mood was noted to be dysthymic. The Veteran also reported being irritable at times, and having occasional paranoia with a fear of being imprisoned. Id. The examiner noted the Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, disturbances of motivation and mood, inability to establish and maintain effective relationships. Id. In June 2017, the Veteran testified before the undersigned Veteran’s Law Judge during a videoconference hearing. See Hearing Transcript. The Veteran testified that he was not currently receiving treatment for PTSD because he had difficulty joining group therapy. He also reported that he had a strained relationship with his wife due to his PTSD. The Veteran endorsed nightmares, night sweats, panic attacks, memory loss, depression, and stated that he could not function well in a work environment. He also denied suicide ideation, problems with hygiene, and denied impaired impulse control (such as anger accompanied with violence). During the hearing, the Veteran’s friend Mr. S.S. also testified that the Veteran has lived with him and his wife. Mr. S.S. stated that the Veteran was very withdrawn and stayed in the basement during most of the time he stayed with Mr. S.S. Mr. S.S. also reported that the Veteran checked the locks at his house. Mr. S.S. further stated that the Veteran took three days to complete a one-day plumbing job in his house. Pursuant to the October 2017 Board remand, the Veteran was afforded a VA examination for PTSD in November 2017. See November 2017 VA Review PTSD DBQ. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks. Id. The Veteran reported that he has been trying to start his own business selling health supplement products. Id. He also reported that he gets “stressed out really easily.” Id. He also stated that he is uncomfortable around people and crowds, and that he checks the locks and perimeter nightly before he goes to bed. The examiner found that the Veteran’s checking the perimeter did not interfere with his functioning. The examiner noted that the Veteran exhibited the following symptoms: depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, and difficulty adapting to stressful circumstances, including work or a work like setting. Additional PTSD symptoms noted also included feelings of detachment, hypervigilance, and an exaggerated startle response. The examiner noted the Veteran was alert, cooperative but had poor eye contact. His speech was noted to be of normal rhythm, rate, and volume. Id. Analysis Based on a review of the evidence, the Board finds that the Veteran’s PTSD resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with a 50-percent rating. 38 C.F.R. § 4.7. The above-cited evidence reflects that the Veteran’s PTSD was primarily manifested by depressed mood; anxiety; suspiciousness; chronic sleep impairment; nightmares; concentration problems; mild memory loss; hypervigilance; difficulty adapting to stressful circumstances; and difficulty in establishing and maintaining effective work and social relationships. These symptoms are specifically contemplated by the 50 percent rating criteria. See 38 C.F.R. § 4.7 (2017). Notably, the VA examiners also found that the Veteran’s PTSD symptomatology most nearly approximates occupational and social impairment with reduced reliability and productivity. Although, the VA examiners found the Veteran exhibited symptoms of difficulty adapting to stressful circumstances, and inability to establish and maintain effective relationships, the Veteran did not exhibit any additional symptoms which are consistent with a 70 percent rating. Specifically, the Veteran denied suicide and homicide ideations consistently. His speech was normal and logical. There was no evidence that he experienced near-continuous panic attacks, and he routinely denied impaired impulse control (such as unprovoked irritability with periods of violence). The Veteran was alert and oriented in all spheres during his treatment and VA examinations. He also denied any problems with personal hygiene during the June 2017 Board hearing. The October 2017 VA examiner also found that the Veteran’s behavior of checking locks did not interfere with his functioning. Accordingly, the Veteran’s PTSD symptoms do not meet the criteria for a 70 percent rating. The Board also determined whether a rating of 100 percent is warranted. However, after a review of the Veteran’s symptoms and his social and occupational functioning, the Board finds that such a rating is not warranted. Notably, the Board is cognizant that rating of this disability is symptom driven, and from a review of the Veteran’s symptoms, which were discussed above, they are not consistent with such a rating, where the Veteran has not exhibited any of the symptoms listed under the 100 percent rating criteria or symptoms similar to these symptoms. Moreover, even if the symptoms were exhibited, they do not reach the frequency, severity, and duration as noted under the 100 percent rating criteria. For instance, there has been no evidence showing that the Veteran’s exhibits thought processes or communication which is as severe as gross impairment. There has been no delusions or hallucinations that are persistent, behavior that has been grossly inappropriate, or that he causes danger to himself or others that is persistent, that there is an inability to perform activities of daily living, or that he has memory loss that reaches a level where he does not remember his own name. Additionally, there is no evidence that the Veteran had total occupational and social impairment. In fact, the December 2012 and November 2017 VA examination, specifically determined that his occupational and social impairment were or occasionally reduced only. In deciding the claim, the Board considered the lay statements from the Veteran, and his friend Mr. S.S., and finds that they are competent and credible evidence of the Veteran’s PTSD which they either experienced or observed. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 470 (1994). However, these statements are not competent evidence as to a specific level of disability according to the appropriate diagnostic codes. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Evidence concerning the nature and extent of the Veteran’s PTSD has been provided by the medical personnel who have examined him at various times during the current appeal and who have rendered pertinent opinions in conjunction with the physical evaluations. The medical findings as provided in the examination reports directly address the criteria under which this type of disability is evaluated. The Board, therefore, finds the medical findings to be of a greater probative value as to the current severity of the Veteran’s PTSD than his statements. Given such, the Board does not find that a rating of 70 percent or 100 percent, as the record stands, is warranted. Therefore, as the weight of the evidence is against a rating in excess of 50 percent for the Veteran’s PTSD, his claim must be denied. REASONS FOR REMAND 1. Service connection for a skin disability of the feet, to include tinea pedis The Board finds that a remand is warranted for a new VA examination because the November 2017 VA examination for the reasons explained below. Initially, the Board finds that the examination failed to comply with the October 2017 remand. See Stegall v. West, 11 Vet. App. 268 (1998). Specifically, the Board stated in the previous remand that the December 2012 VA examination was inadequate “because of its reliance on an absence of medical documentation without discussing the Veteran’s reported symptomology.” The December 2017 VA examination essentially discounts the Veteran’s contentions because the examiner stated that “where there is no documentation of treatment this does not represent objective evidence.” Because the VA examiner failed to address the Veteran’s credible and competent statements of continuity of symptomology as instructed in the Board remand, a remand is warranted. Additionally, in a brief submitted in September 2018, the Veteran’s representative argued that the November 2017 VA examination pertaining to skin disability of the feet was inadequate because the examiner was “identified as a Psychiatrist [sic], rather than a Dermatologist who possesses the adequate expertise and training to evaluate skin disorders.” See Appellate Brief. Accordingly, on remand the VA examination should be provided by a dermatologist or other qualified medical professional. 2. TDIU The Board notes that a claim of entitlement to TDIU was raised by September 2011 Statement in Support of Claim. See VA Form 21-4138, Statement in Support of Claim. See also Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate “claim” for benefits, but rather, is part of a claim for increased compensation). Under Rice, the Board has jurisdiction over the TDIU claim, and for the purposes of clarity, has separately captioned the issue on the title page. Here, in the November 2017 Review PTSD DBQ opinion, the examiner found that the Veteran cannot sustain the stress from a competitive work environment but could work independently. See November 2017 Review PTSD DBQ. Furthermore, the Veteran has testified that he had not worked since 1970s due to inability to be in a work environment. See Hearing Transcript. The Veteran is competent to establish the presence of observable symptomatology and there is no evidence these statements are not credible. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As such, the Board finds that the record and the Veteran’s statements have reasonably raised the issue of entitlement to TDIU. Given such, remand is warranted for development and consideration of this issue. Further, on remand as to entitlement to TDIU, the RO should provide the Veteran with notice regarding the information and evidence necessary to substantiate a TDIU. The Veteran should be asked to complete and return to VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Un-employability), and allow him an opportunity to identify any outstanding treatment records referable to such claim. Any further development that becomes indicated as part of this remand must be accomplished as well. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by a DERMATOLOGIST or appropriate medical professional with knowledge in skin disabilities to determine the nature and etiology of his skin disability of the feet to include tinea pedis. All pertinent evidence of record including this remand must be made available to and reviewed by the examiner. Any indicated studies should be performed. 2. The examiner is asked to provide an opinion whether it is at least as likely as not (a 50 percent or greater probability) that any current skin disability of the feet was incurred in, or was otherwise caused by, the Veteran’s period of active service, including the Veteran’s treatment for tinea pedis in March 1967. The examiner must address the Veteran’s credible lay statements regarding post-service continuity of symptoms. The Veteran’s lay statements cannot be disregarded solely due to lack of contemporaneous medical evidence. If providing a negative opinion, the examiner is asked to specifically address the March 1977 service treatment record reporting a tinea pedis and the Veteran’s treatment in September 2011 for tinea pedis, and the Veteran’s lay statements of continuous symptoms of skin condition of feet since active service. A rationale for all opinions expressed should be provided in the examination report. If medical literature is relied upon in rendering any opinion(s), the VA examiner should identify and specifically cite each reference material utilized. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 3. Veteran must be provided with proper notice regarding information and evidence necessary to establish entitlement to a TDIU determination, and, the following actions are to be taken: (a.) Undertake all notice and evidentiary development needed to resolve the issue of entitlement to a TDIU. This should include sending the Veteran a letter advising him of the information and evidence needed to award a TDIU. Any additional development required must be accomplished. (b.) Specifically, VA is to request that the Veteran identify any pertinent records that may exist that need to be obtained, if at all possible. The Veteran is to be provided with the appropriate release forms and VA is to obtain said reports for consideration, this requirement is limited to the extent said records are available. If any reports are not available then a statement to that effect must be added to the claims file. (c.) Completion of any further development deemed necessary, to include, but is not limited to, completion of the VA examination, regarding the Veteran’s employability. Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel