Citation Nr: 18147164 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 16-35 226 DATE: November 2, 2018 ORDER New and material evidence sufficient to reopen the claim for a bilateral lower extremity disability has been received. Service connection for a bilateral lower extremity disability is denied. Service connection for a right foot disability is granted. An increased rating for posttraumatic stress disorder (PTSD), currently rated as 70 percent disabling, is denied. FINDINGS OF FACT 1. Evidence added to the record since the previous final is not cumulative of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the claim of entitlement to service connection for a bilateral lower extremity disability. 2. The Veteran’s bilateral lower extremity disability was not incurred in and due to his time in service. 3. The Veteran’s right foot disability was incurred in and due to his time in service. 4. The Veteran’s PTSD is not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of entitlement to service connection for a bilateral lower extremity disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for service connection for a bilateral lower extremity disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 3. The criteria for service connection for a right foot disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for an increased rating for PTSD currently rated as 70 percent disabling have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from September 1988 to January 1989 and from November 1990 to May 1991. Additionally, the Veteran had several periods of active duty for training (ACDUTRA). The Veteran had a hearing before the undersigned Veterans Law Judge in October 2016. Lastly, the Board notes the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) from March 28, 2016. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s original claim for service connection for a bilateral lower extremity disability was denied in a January 2010 rating decision because there was no evidence the Veteran’s disability was incurred in or due to his time in service The Veteran did not appeal and therefore, the decision became final. The Veteran submitted the present claim for service connection for a bilateral lower extremity disability in September 2013. A May 2014 rating decision denied the claim. The Veteran appealed. Since the previous final denial, both new and material evidence has been associated with the file, including service treatment records (STRs), medical records, examinations, and hearing testimony. Therefore, the Board will reopen the claim and address the claim on its merits below. Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran claims he has bilateral lower extremity peripheral neuropathy that was incurred in and due to his time in service. Specifically, the Veteran has said he started experiencing neurological symptoms while in service, such as dizziness, (See August 2016 statement, October 2016 hearing transcript.) with further symptoms manifesting two to three years after his service in the Gulf War. (See September 2016 medical record, January 2017 medical record, October 2016 hearing transcript.) The Veteran has been diagnosed with bilateral lower extremity peripheral neuropathy. However, the Veteran’s STRs for his time in the Marine Corps and in the Army National Guard are negative for any symptoms or treatment of lower extremity peripheral neuropathy. The Veteran’s medical records show the Veteran was seen for dizziness in 1993 and 1995. The Veteran’s medical records also show he has been treated for bilateral lower extremity peripheral neuropathy throughout the years. Several of the Veteran’s treatment records show the Veteran’s neuropathy is of an unknown etiology. (See April, May 2013 treatment records.) A June 2016 examiner opined the Veteran’s bilateral lower extremity neuropathy was less likely than not incurred in or due to the Veteran’s time in service. The examiner noted the Veteran clearly has been diagnosed with the condition. However, a neurologist and the Veteran himself noted the onset was within about two years of his separation from service. The examiner reviewed the Veteran’s STRs and noted the Veteran’s STRs were negative for symptoms suspicious for peripheral neuropathy and there was no evidence the Veteran was on active duty when his symptoms began. Upon the examiner’s review of the STRs, the examiner also reported there was no evidence of any illness or condition associated with causation of peripheral neuropathy. The examiner explained the type of peripheral neuropathy the Veteran has been diagnosed with is due to a generalized metabolic disturbance that affects all peripheral nerves that may be due to the Veteran’s chronic alcoholism. The examiner also noted many cases of peripheral neuropathy remain of unknown etiology. The examiner also noted that localized ulcers and infections, such as the one on the Veteran’s right foot, do not cause peripheral neuropathy. The examiner explained there is no anatomic or physiologic basis by which that could occur. The Board is sympathetic to the Veteran’s condition as it clearly pains him a great deal. However, because the Veteran’s STRs and the medical evidence of record, including the June 2016 examiner’s opinion, do not show the Veteran’s lower extremity peripheral neuropathy was not incurred in and due to his time in service, the claim must be denied. Turning to the Veteran’s claim for service connection for a right foot disability, the Board notes the Veteran has been diagnosed with a right foot disability. (See August 2014 examination.) The Veteran’s STRs also show he was seen for blisters that developed while in service. (See August 2012 STRs.) The August 2014 examiner opined the Veteran’s current right foot disability was at least as likely as not incurred in and due to his time in service. Therefore, the claim will be granted. Increased Rating Disability evaluations (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 the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s mental health disability is currently rated under DC 9411. Under DC 9411, a 70 percent rating is prescribed when there is evidence of 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. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran contends his PTSD warrants a higher, 100 percent disability rating. In an August 2016 statement, the Veteran stated he had difficulty holding jobs due to his PTSD symptoms. The Veteran stated he had anxiety associated with interacting with co-workers, supervisors, and customers. The Veteran also reported trouble concentrating, remembering simple work-related tasks, and could not focus due to lack of sleep. In an October 2016 statement, the Veteran reported he had anger, anxiety, chronic sleep problems, danger of hurting himself or others, difficulty making decisions, flashbacks, hallucinations, heavy alcohol use, inability to make and keep friends, intrusive thoughts, isolation, overly concerned with personal hygiene, panic attacks, periods of violence, problems at work, problems getting along with people, SI, taking medication, and being unable to share his feelings. The Veteran was afforded an examination for his PTSD in August 2016. The examiner opined the Veteran’s PTSD lead to occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported getting along with his children, seeing the youngest weekly and the older ones monthly. The Veteran said he remained estranged from his parents and siblings. The Veteran reported he had not been socializing or seeing friends. The Veteran reported feeling anxiety and having intrusive thoughts and nightmares three to four times each week. The Veteran avoided thinking about his military experience and when he did, he had anger and shakiness. The Veteran continued to experience hypervigilance, anxiety in crowds, and irritability. The Veteran denied having flashbacks, but did say he experienced low level depressed mood three to four times per week. The Veteran denied feeling worthless or hopeless and denied any suicidal or homicidal ideations. The Veteran also denied having rituals, but did report having some trouble sleeping. While the Veteran experience many symptoms due to his PTSD and has continued to seek treatment for his mental health, the objective evidence of record does not indicate the Veteran’s PTSD warrants a higher 100 percent disability rating. The Veteran’s record does not show he suffers from suicidal or homicidal ideations, hygiene problems, grossly inappropriate behavior, hallucinations, speech, thought, or memory problems. (See October 2016, January and March 2017 medical records.). While the Veteran’s PTSD may, in fact, bother him a great deal, it is important for the Veteran to understand that this is the basis for the current findings. If his mental health did not cause him problems, there would be no basis for compensable ratings, the only question is the degree. Neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Regarding the Veteran’s claim for lower extremity peripheral neuropathy, the Board acknowledges and has considered the Veteran’s statements that his condition bothers him, causes him pain and discomfort, causes problems working, and that he believes this disability is due to his time in service, including his exposure to toxic agents while serving in the Gulf. Regarding the Veteran’s claim for an increased rating for PTSD, the Board understands the Veteran’s mental health is a constant problem for him. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the nature, etiology, and severity of his medical conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities are the result of service or warrant a higher disability rating, providing a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claims. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel