Citation Nr: 18144191 Decision Date: 10/24/18 Archive Date: 10/23/18 DOCKET NO. 18-35 353 DATE: October 24, 2018 ORDER Prior to August 21, 2018, a 70 percent rating for posttraumatic stress disorder with major depressive disorder, recurrent moderate and alcohol abuse in remission (PTSD) is granted. From August 21, 2018, but not earlier, a 20 percent rating for bilateral anterior cortical cataracts with diabetic retinopathy (cataracts) is granted. From April 30, 2013, a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED An increased disability rating in excess of 10 percent for bilateral hearing loss prior to November 22, 2013; in excess of zero percent (noncompensable) from November 22, 2013; in excess of 20 percent from June 15, 2017; and in excess of 40 percent from August 21, 2018, is remanded. FINDINGS OF FACT 1. Prior to August 21, 2018, the Veteran’s PTSD was productive of occupational and social impairment, with deficiencies in most areas; total occupational and social impairment have not been shown. 2. The Veteran’s cataracts have been productive of visual acuity of 20/40 or better in both eyes prior to February 22, 2018, and 20/50 in one eye and 20/40 or better in the other eye thereafter. 3. Throughout the pendency of the appeal, the Veteran’s cataracts have been productive of average concentric contraction, at worst, of 46 degrees in one eye, and 51 degrees in the other eye. 4. The Veteran’s cataracts have not been productive of incapacitating episodes or muscle dysfunction. 5. From April 30, 2013, a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. CONCLUSIONS OF LAW 1. Prior to August 21, 2018, the criteria for a 70 percent rating for PTSD were met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9411. 2. Prior to August 21, 2018, the criteria for a disability rating in excess of 10 percent rating for cataracts have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.75-.79, Diagnostic Codes 6027-6080. 3. From August 21, 2018, the criteria for a 20 percent rating for cataracts have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.75-.79, Diagnostic Codes 6027-6080. 4. From April 30, 2013, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from October 1966 to October 1968, to include service in the Republic of Vietnam. Commendations and medals include, the Purple Heart and the Combat Infantry Badge. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Veteran’s April 30, 2013, increased rating claim and the medical evidence of record raised the issue of whether he was unemployable due to service-connected disabilities. The Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issues on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). During the pendency of the appeal, a May 2018 rating decision granted a 20 percent rating for hearing loss, effective June 15, 2017. An August 2018 rating decision granted a TDIU from November 22, 2016. A September 2018 rating decision granted a 100 percent rating for PTSD, a 40 percent rating for hearing loss, and a special monthly compensation at the housebound rate, each effective August 21, 2018. However, as such did not constitute full grants of the benefits sought on appeal, the issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). A. Generally Applicable Law Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. B. Discussion 1. An increased rating for PTSD Since the Veteran’s April 30, 2013 claim for increase, his PTSD has been rated 50 percent disabling prior to August 21, 2018, and 100 percent disabling thereafter. For the reasons discussed below, the Board concludes that prior to August 21, 2018, a 70 percent rating for PTSD is warranted. Under Diagnostic Code 9411, a 50 percent is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent is warranted 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 work like setting); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted if evidence shows 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. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). In this case, historically, a VA examiner in October 2012 reported that the Veteran’s PTSD was productive of social and occupational impairment in most areas due to signs and symptoms such as depressed mood, disturbances of motivation and mood, chronic sleep impairment, anxiety, flattened effect, and hypervigilance. The examiner’s report included a detailed account of the Veteran’s prior mental health history. On VA examination in November 2013 and June 2017, examiners reported that the Veteran’s PTSD was productive of social and occupational impairment with reduced reliability and productivity due to a continuation of the symptoms noted on the October 2012 VA examination. VA examinations and treatment records show that the Veteran is only able to sleep a few hours at a time due to nightmares. VA treatment records show that the Veteran is depressed most days and experiences fear and anxiety to the extent that the does not want to get out of bed. See, e.g., VA treatment record (April 8, 2014). While he denied active suicidal ideation, he reported passive suicidal ideation and he has lost access to his firearms. Beginning in 2017, the Veteran’s memory began to decline, as shown by the fact that he stopped managing his own medication in January 2017 after increased incidence of forgetfulness, forgetting where he was, and difficulty concentrating. See, e.g., VA treatment record (February 28, 2017). Despite the November 2013 and June 2017 VA examiners’ opinions that the Veteran’s PTSD was productive of social and occupational impairment with reduced reliability and productivity, the Board finds that the Veteran’s symptoms resulted in deficiencies in most areas. In this regard, the severity and frequency of his depression, lack of motivation, and anxiety would have resulted in significant deficits in occupational and education settings as well as interpersonal relations, judgment, thinking, or mood. Accordingly, the Board finds that a 70 percent rating is warranted prior to August 21, 2018. From August 21, 2018, the Veteran has been in receipt of a 100 percent rating. A 100 percent rating is not warranted prior to August 21, 2018, as the evidence affirmatively shows that he does not experience total social impairment. In this regard, all VA examiners have characterized the Veteran as polite, cooperative, and well-groomed. Significantly, records show that he has been married throughout the pendency of the appeal. While the Board acknowledges that the Veteran does not have many quality relationships outside his marriage, it cannot be found that he has a total social impairment where, as here, he has been married to his spouse continuously and clinicians have characterized him as polite, cooperative, and well-groomed. Accordingly, prior to August 21, 2018, a 70 percent rating, but no higher, is warranted. 2. An increased rating for cataracts Since the Veteran’s April 30, 2013, claim for increase, his cataracts have been rated 10 percent disabling under Diagnostic Codes 6027-6080. For the reasons discussed below, the Board concludes that from February 22, 2017, a 20 percent rating for cataracts is warranted. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. Both the former and revised criteria distinguish preoperative and postoperative cataracts. Here, the Veteran’s cataracts are preoperative. See, e.g., VA examination (August 2018). For preoperative cataracts, the former criteria instructed to evaluate based on visual impairment and the revised criteria instruct to evaluate under the General Rating Formula for Diseases of the Eye. General Rating Formula for Diseases of the Eye The Board notes that the General Rating Formula for Diseases of the Eye instructs to evaluate a condition based on visual impairment or for incapacitating episodes, whichever results in a higher evaluation. Thus, the primary difference between the former and revised criteria is consideration of incapacitating episodes. With regard to visual impairment, the amendments made no substantive changes to how visual acuity is rated. With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated. Incapacitating Episodes Where there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. Where there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Where there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions. Note (3) indicates that, for the purposes of evaluating visual impairment due to a particular condition, refer to 38 C.F.R. § 4.75-4.78 and to § 4.79, DCs 6061-6091. Here, the Veteran does not contend and the evidence does not suggest that his service-connected eye disorder has been productive of incapacitating episodes as defined by the rating criteria. In fact, VA examinations conducted throughout the pendency of the appeal affirmatively state that his service-connected eye disorder has not been productive of incapacitating episodes. Accordingly, a higher rating is not warranted on the basis of incapacitating episodes. Visual Impairment: Generally The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a). Examinations of visual impairment must be conducted by a licensed optometrist or ophthalmologist, and the examiner must identify the disease, injury, or other pathologic process for any visual impairment found. Id. at (b). Examinations of visual field or muscle function will be conducted only when medically indicated. Id. Visual Impairment: Muscle Function As to muscle function, the Veteran does not contend and the evidence does not suggest that his eye disorder has been productive of muscle dysfunction. In fact, VA examinations conducted throughout the pendency of the appeal affirmatively state that his service-connected eye disorder has not been productive of muscle dysfunction. Accordingly, a higher rating is not warranted on the basis of muscle function. Visual Impairment: Visual Acuity As to visual acuity, evaluations are based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. The rater will first locate the step that matches the visual acuity of the poorer eye. Within that step, the rater will then locate the subsection that matches the visual acuity of the better eye, which will produce the corresponding rating. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c). Here, VA examination and treatment records show that the Veteran’s visual acuity was 20/40 or better in both eyes until the August 21, 2018 VA examination, at which time visual acuity was 20/50 in the right eye and 20/40 or better in the left eye. See VA examinations (June 2011; November 2013); VA treatment records (July 13, 2012; November 3, 2015). Applying these measurements to the table for Impairment of Central Visual Acuity, visual acuity is consistent with a noncompensable rating prior to August 21, 2018, and a 10 percent rating thereafter. The Veteran reported decreased acuity in an April 2014 statement, and a November 3, 2015, VA treatment record shows that the Veteran’s acuity was 20/40 or better bilaterally. A February 22, 2017 VA treatment record shows that the Veteran complained of decreased acuity and was given a new vision prescription. However, his entering visual acuity was noted as 20/40 on the right and 20/30 on the left. Thus, it is not factually ascertainable at that time that the higher level disability had manifested. Rather, it was not until the August 2018 VA examination that the Veteran’s acuity warranted a 10 percent rating. None of the records between February 2017 and the August 2018 examination establish the 10 percent disability level. Thus, the August 2018 VA examination represents the earliest point at which it became factually ascertainable that an increase in severity occurred. See Swain, 27 Vet. App. 219. Accordingly, an increased rating for visual acuity is not warranted. Visual Impairment: Vision Field Evaluation of visual field is based on the remaining field of vision in each eye. The examiner must record the remaining visual field of at least 16 meridians 22½ degrees apart for each eye, even though only the visual field at eight principal meridians 45 degrees apart will be used for rating purposes. Id. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. To calculate average concentric contraction, the rater should add the remaining visual field (in degrees) at each of eight principal meridians 45 degrees apart and divide the sum by eight. 38 C.F.R. § 4.77(b). To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity), and combine them under the provisions of § 4.25. 38 C.F.R. § 4.77(c). Here, visual field testing performed throughout the pendency of the appeal shows average concentric contraction, at worst, to 46 degrees in one eye, and 51 degrees in the other, which warrants a 10 percent rating. See 38 C.F.R. § 4.79, Diagnostic Code 6080. In this regard, the results of the July 2011 examination, below, show average concentric contraction 51 degrees in the left eye and 46 degrees in the right eye, which warrant a 10 percent rating: Visual Field (Degrees) Principle Meridians Left Eye Right Eye temporally 55.00 60.00 temporally down 60.00 65.00 down 60.00 60.00 down nasally 45.00 50.00 nasally 55.00 45.00 up nasally 40.00 30.00 up 45.00 25.00 up temporally 45.00 30.00 Avg. Concentric Contraction 50.625 45.625 The results of the November 2013 examination, below, show average concentric contraction 50 degrees in the left eye and 53 degrees in the right eye: Visual Field (Degrees) Principle Meridians Left Eye Right Eye temporally 55.00 65.00 temporally down 50.00 55.00 down 45.00 55.00 down nasally 50.00 55.00 nasally 55.00 50.00 up nasally 55.00 45.00 up 45.00 45.00 up temporally 45.00 55.00 Avg. Concentric Contraction 50 53.125 The results of the August 2018 examination, below, show average concentric contraction 53 degrees in the left eye and 52 degrees in the right eye: Visual Field (Degrees) Principle Meridians Left Eye Right Eye temporally 74.00 65.00 temporally down 70.00 70.00 down 60.00 60.00 down nasally 50.00 50.00 nasally 54.00 38.00 up nasally 39.00 45.00 up 21.00 29.00 up temporally 55.00 55.00 Avg. Concentric Contraction 52.875 51.5 Visual Impairment: Overall As discussed above, from February 22, 2017, a 10 percent rating for visual acuity is warranted. Additionally, throughout the pendency of the appeal, a 10 percent rating for visual field defects is warranted. To determine the evaluation for visual impairment where, as here, both decreased visual acuity and visual field defect are present in one or both eyes, the visual acuity and visual field defect (expressed as a level of visual acuity) are to be separately evaluated and then combined under the provisions of § 4.25. 38 C.F.R. § 4.77(c). Accordingly, the Veteran’s visual impairment is consistent with a 10 percent prior to August 2018, and a 20 percent rating thereafter. Thus, the Veteran’s total rating for cataracts is increased to 20 percent effective August 21, 2018. 4. TDIU The Board finds that from April 30, 2013, the date of the above-discussed claims for increase, the Veteran’s service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment. It is the established policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual’s circumstances. 38 C.F.R. § 4.16; Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran’s education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. The ultimate question of whether a veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran is service-connected for PTSD, prostate cancer, hearing loss, diabetes mellitus, peripheral neuropathy of the upper and lower extremities, shell fragment wounds of the left forearm, tinnitus, cataracts, and erectile dysfunction. Throughout the pendency of the appeal, his service-connected disabilities ha collectively rated at least 90 percent disabling, thereby satisfying the schedular criteria for a TDIU. Based on the evidence, the Board finds that the Veteran’s service-connected disabilities precluded him from obtaining or maintain substantially gainful employment. The Veteran has not worked since 2001, when he retired from a grocery store where he worked as a forklift operator at a grocery store since 1970. See, e.g., VA Form 21-8940 Application for Increased Compensation Based on Unemployability (November 2016). His peripheral neuropathy, hearing loss, and visual disability limited his capacity to continue work as a forklift operator and his PTSD symptoms, to include severe anxiety, depression, lack of motivation, chronic sleep impairment, further diminished his capacity to obtain employment. Given the Veteran’s educational background that includes one year of high school, and his professional experience, the Board cannot conceive of an occupation where the Veteran’s service-connected disabilities would not present a preclusive effect. The Board thus finds that the Veteran is unable to work in a substantially gainful occupation. REASONS FOR REMAND 1. An increased disability rating in excess of 10 percent for bilateral hearing loss prior to November 22, 2013; in excess of zero percent (noncompensable) from November 22, 2013; in excess of 20 percent from June 15, 2017; and in excess of 40 percent from August 21, 2018, is remanded. This issue is remanded to obtain missing VA medical records. Specifically, there was audiometric testing performed at the Veteran’s VA medical center, which has not been associated with the claims file. For example, in September 2013, the Veteran underwent a hearing evaluation by a fee basis provider. At present, the results of the evaluation are noted only as being scanned in. These scanned records are needed. The matters are REMANDED for the following action: Obtain the Veteran’s missing VA treatment records, especially all scanned in audiometric data. C. BOSELY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel