Citation Nr: 18148078 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 12-08 585 DATE: November 6, 2018 ORDER Entitlement to a 100 percent rating for anemia with intestinal malabsorption, under Diagnostic Code 7323, effective March 17, 2009, is granted. Entitlement to a rating in excess of 20 percent for tropical sprue under Diagnostic Code 6313 is denied. Entitlement to a 70 percent rating for post-traumatic stress disorder (PTSD) with major depressive disorder, effective May 1, 2014, is granted. Entitlement to an initial rating in excess of 30 percent prior to May 29, 2013; 50 percent from May 29, 2013 through April 30, 2014; and 70 percent thereafter for PTSD with major depressive disorder is denied. REMANDED Entitlement to service connection for hypertension is remanded. Entitlement to an initial rating in excess of 10 percent for tinea cruris with atopic eczematoid dermatitis is remanded. Entitlement to a compensable rating for the residuals of a fracture of the left fifth toe is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The disability currently rated as anemia with intestinal malabsorption has more nearly approximated a pronounced disability resulting in marked malnutrition, anemia, and general debility since March 17, 2009. 2. The manifestations of tropical sprue, to include the breakdown of bodily function and overall state of general debility due to nutritional deficiencies, are contemplated by the 100 percent rating assigned under Diagnostic Code 7323, and there is no factually ascertainable increase in disability in the one-year period prior to the Veteran’s March 2009 increased rating claim for tropical sprue. 3. Prior to May 29, 2013, the Veteran’s service-connected psychiatric disability manifest in occupational and social impairment with reduced reliability and productivity due to chronic sleep impairment, anxiety, and depressed mood. 4. From May 29, 2013 to April 30, 2014, the Veteran’s service-connected psychiatric disability manifest in reduced reliability and productivity in occupational and social situations due to chronic sleep impairment, anxiety, and depressed mood. 5. Since May 1, 2014, the Veteran’s service-connected psychiatric disability has more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). CONCLUSIONS OF LAW 1. The criteria for a 100 percent rating for anemia with intestinal malabsorption under Diagnostic Code 7323 have been met since March 17, 2009. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.114, Diagnostic Code 7323. 2. The criteria for a rating in excess of 20 percent for tropical sprue under Diagnostic Code 6313 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.14, 4.20, 4.21, 4.88b, Diagnostic Code 6313. 3. The criteria for a 70 percent rating for PTSD with major depressive disorder, effective May 1, 2014, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411. 4. The criteria for a rating in excess of 30 percent prior to May 29, 2013; 50 percent from May 29, 2013 through April 30, 2014; and 70 percent thereafter for PTSD with major depressive disorder have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans’ Appeals (Board) on appeal from several decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. These matters were previously before the Board in November 2015, when they were remanded for further development. The Veteran appeared at a hearing before the undersigned in March 2015. A transcript of the hearing is of record. Increased Ratings 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. Otherwise, the lower rating will be assigned. Id. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10. 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. 1. Entitlement to higher initial rating for anemia with intestinal malabsorption. A July 2010 rating decision granted service connection for anemia secondary to tropical sprue with an initial 10 percent rating under Diagnostic Code 7700, effective March 17, 2009. The Veteran appealed the initial rating assigned for the newly service-connected disability. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for different periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In November 2015, the Board remanded the issue of entitlement to a higher initial rating for anemia to the Agency of Original Jurisdiction (AOJ) for additional development, to include a new VA examination. The Veteran was provided a new examination in January 2017 in accordance with the Board’s remand directives. In April 2017, the AOJ issued a rating decision recharacterizing the disability as “anemia with intestinal malabsorption” and assigned a 100 percent rating under Diagnostic Code 7323, effective January 17, 2017, based on the date of the examination directed by the Board. This essentially resulted in a staged initial rating for the disability originally described as anemia secondary to tropical sprue. See Fenderson, 12 Vet. App. at 125-26. The AOJ rated anemia with intestinal malabsorption by analogy under Diagnostic Code 7323, which relates to ulcerative colitis, a chronic inflammatory bowel disease. See 38 C.F.R. § 4.21; DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 384, 1998 (32d ed. 2012). A 100 percent rating is warranted under Diagnostic Code 7323 for a pronounced disability, resulting in marked malnutrition, anemia, and general debility, or with serious complication such as liver abscess. See 38 C.F.R. § 4.114. The January 2017 VA examiner reported the Veteran has marked malnutrition, anemia, and general debility as a result of malabsorption related to tropical sprue. After an initial review of the January 2017 VA examination report, the Board obtained an expert opinion from an infectious disease specialist with the Veteran Health Administration (VHA) pursuant to 38 C.F.R. § 20.901 because the January 2017 VA examiner’s opinion appeared to suggest the symptoms that warranted the assignment of a 100 percent rating under Diagnostic Code 7323, to include malabsorption, decreased protein synthesis, and other complications, had been present throughout the appeal period (i.e., since the date of the Veteran’s March 2009 claim). In April 2018, R.M.W., M.D., a VHA infectious disease specialist provided an opinion addressing the chronic nature of tropical sprue and its resulting complications, to include anemia, malabsorption, and decreased protein synthesis. She explained anemia, malabsorption and, to some extent, decreased protein synthesis are issues associated with tropical sprue and have likely been present since the Veteran was diagnosed as having the disease. R.M.W., M.D., further noted treatment records show the Veteran has been required to receive monthly B12 injections since at least 2010, confirming the complications that are associated with malabsorption that have been deemed to warrant a 100 percent rating under Diagnostic Code 7323 have been present throughout the appeal period. Based on the April 2018 VHA opinion, after resolving any reasonable doubt in favor of the Veteran, the Board finds a 100 percent rating is warranted under Diagnostic Code 7323, effective March 17, 2009. This expert medical evidence confirms the presence of anemia, malabsorption, decreased protein synthesis and other complications resulting in debilitating attacks throughout the appeal period. Although the severity of these symptoms and their complications have been noted to wax and wane over time, the chronic nature of the underlying disability requires the Board to interpret the various reports into a consistent picture. The Board finds the manifestations in the Veteran’s case cause him to be in a perpetual cycle of nutritional deficit resulting in decreased bodily function and a general state of debility, as described by the January 2017 VA examiner. While these manifestations are primarily due to the chronic nature of tropical sprue, the Board will use the diagnostic codes (6313, 7323) relied upon by the AOJ in the interest of due process rather than sever service connection for any disability or consolidate the independent ratings into a single diagnostic code. This approach will be discussed in more detail in the section that follows that addresses the rating assigned for tropical sprue as an independently rated disability. In sum, the Board finds an earlier effective date of March 17, 2009 for the 100 percent rating assigned for anemia with malabsorption under Diagnostic Code 7323 is warranted. The Board deems this a full grant of the benefit sought on appeal with respect to the disability initially described as anemia, as a 100 percent rating is assigned from the effective date of service connection for the disability. 2. Entitlement to an increased rating for tropical sprue under Diagnostic Code 6313. The July 2010 rating decision that granted service connection for anemia secondary to tropical sprue also denied a rating in excess of 20 percent for tropical sprue under Diagnostic Code 6313. The Board notes the Veteran has been entitled to service connection for tropical sprue since August 1, 1974, so the appeal of the rating assigned for tropical sprue is an appeal of an increased rating claim. Where entitlement to compensation has already been established and increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, the more critical evidence consists of the evidence generated during the appeal period. Id. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a “staged rating” (i.e., assignment of different ratings for distinct periods of time, based on the facts). Hart v. Mansfield, 21 Vet. App. 505 (2007). In the Veteran’s case, tropical sprue is currently rated by analogy under Diagnostic Code 6313, which relates to avitaminosis, a condition resulting from deficiency of one or more particular vitamins. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 184, 908 (32d ed. 2012). Under Diagnostic Code 6313, a 10 percent rating is assigned for a confirmed diagnosis with nonspecific symptoms such as decreased appetite, weight loss, abdominal discomfort, weakness, inability to concentrate, and irritability. A 20 percent evaluation is assigned for stomatitis or achlorhydria or diarrhea. A 40 percent evaluation is assigned for stomatitis, diarrhea, and symmetrical dermatitis. A 60 percent evaluation is assigned for stomatitis, diarrhea, and symmetrical dermatitis with mental symptoms and impaired bodily vigor. A 100 percent evaluation is assigned for marked mental changes, moist dermatitis, inability to retain adequate nourishment, exhaustion, and cachexia. 38 C.F.R. § 4.88b, Diagnostic Code 6313. The Board notes the rating criteria for Diagnostic Codes 6313 and 7323 overlap to some degree. The higher ratings under both codes contemplate situations in which nutritional deficiencies result in severe complications and an ultimate breakdown of bodily function. As previously noted, the Board finds the anemia and intestinal malabsorption that is currently rated as an independent disability are really manifestations of tropical sprue; therefore, the Veteran is already compensated at the 100 percent rate under Diagnostic Code 7323 for nutritional deficiencies resulting from the complications that have produced a state of general debility in his case. An additional rating for these manifestations under Diagnostic Code 6313 would constitute impermissible pyramiding under 38 C.F.R. § 4.14; however, the Board will not disturb the separate rating currently assigned under Diagnostic Code 6313 in the interest of due process. To the extent that an earlier effective date could be awarded under 38 C.F.R. § 3.400(o)(2) for the 100 percent rating assigned under Diagnostic Code 7323 as a result of the Veteran’s March 2009 increased rating claim for tropical sprue, the Board finds it is not factually ascertainable that an increase in disability occurred in the year prior to the claim. The expert evidence, most notably, the April 2018 VHA opinion, indicates the manifestations that warrant a 100 percent rating in the Veteran’s case were likely present for several years prior to his increased rating claim. Further, the expert evidence indicates tropical sprue and its resulting complications constitute a chronic condition in which the severity of manifestations wax and wane of the years. Thus, the Board is unable to point to a definitive increase in disability in the one-year period prior to the Veteran’s March 2009 increased rating claim for tropical sprue. Nevertheless, the Board finds a 100 percent rating is warranted for tropical sprue and its related complications of anemia and intestinal malabsorption from the date of the Veteran’s increased rating claim, March 17, 2009, and, to that extent, the Veteran’s appeal is granted. 3. Entitlement to a higher initial rating for PTSD with major depressive disorder. An October 2011 rating decision granted service connection for PTSD with adjustment disorder with mixed emotional features with an initial 30 percent disability rating, effective July 22, 2010. The Veteran appealed the initial rating. An April 2017 rating decision recharacterized the disability as PTSD with major depressive disorder and increased the rating to 50 percent, effective May 29, 2013, resulting in a staged initial rating for the disability. See Fenderson, 12 Vet. App. at 125-26. The Board will refer to the Veteran’s service-connected psychiatric disability as PTSD with major depressive disorder throughout the appeal period for the sake of clarity. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of ability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is assigned when there is reduced reliability and productivity in occupational and social situations due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotypical speech; panic attacks that occur more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability rating is justified 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 work like setting); and inability to establish and maintain effective relationship. Id. A 100 percent disability rating is reserved 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; and memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the claimant's symptoms, but it must also make findings as to how those symptoms impact the claimant's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (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. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the claimant’s impairment must be “due to” those symptoms; therefore, a claimant may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118; Mauerhan, 16 Vet. App. at 442. The Veteran was provided an initial VA psychiatric examination in November 2010. The November 2010 VA examiner diagnosed PTSD with adjustment disorder with mixed emotional features. The November 2010 VA examiner assessed the functional impairment resulting from the Veteran’s psychiatric disability as occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although generally functioning satisfactorily with routine behaviors, self-care and normal conversation due to chronic sleep impairment, anxiety, and depressed mood. The Board notes both the level of functional impairment and the symptoms noted by the November 2010 VA examiner are contemplated by the 30 percent rating criteria under the General Rating Formula. The Veteran was provided a second VA psychiatric examination in May 2013. The May 2013 VA examiner diagnosed the Veteran as having PTSD with a mood disorder due to his general medical condition. The May 2013 VA examiner assessed the functional impairment resulting from the Veteran’s psychiatric disability as occupational and social impairment with reduced reliability and productivity due to chronic sleep impairment, anxiety, and depressed mood. The May 2013 VA examiner noted a slight progression of the Veteran’s psychiatric disability and advised the Veteran to seek follow-up treatment. The Board notes the symptoms reported by the May 2013 VA examiner are contemplated by the 30 percent rating criteria, but the level of functional impairment assessed correspond to the 50 percent rating criteria. The Veteran’s most recent VA examination was in January 2017. The January 2017 VA examiner diagnosed the Veteran as having PTSD and major depressive disorder in conformance with the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V). See 38 C.F.R. §§ 4.125, 4.126. The January 2017 VA examiner assessed the functional impairment resulting from the Veteran’s psychiatric disability as occupational and social impairment with reduced reliability and productivity due to depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). The January 2017 VA examiner noted a further decline in the Veteran’s mental state due to the death of his wife in 2014. The January 2017 VA examiner explained the Veteran’s deceased wife was the primary source of support and comfort with regard to coping with the effects of PTSD. The Board notes the symptoms reported by the January 2017 VA examiner are contemplated by the 70 percent rating criteria, although the functional impairment assessed corresponds to the 50 percent rating criteria. The Board notes the Veteran has never sought extensive psychiatric treatment, so VA examination reports are the most probative evidence with respect to his level of occupational and social functioning due to the effects of his service-connected psychiatric disability. The VA examination reports are consistent with the limited references to psychiatric problems noted in treatment records and the Veteran’s testimony during the March 2015 before the undersigned. The Board finds an increase to a 70 percent rating is warranted for the Veteran’s service-connected psychiatric disability, effective May 1, 2014, based on the symptoms noted by the January 2017 VA examiner, to include depressed mood, anxiety, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). Although the January 2017 VA examiner assessed the Veteran’s functional impairment at a level corresponding to the 50 percent criteria, the Veteran’s symptoms are the Board’s primary consideration in arriving at the proper rating under the General Rating Formula. As many of the symptoms noted by the January 2017 VA examiner correspond to those contemplated by the 70 percent criteria, the Board finds a 70 percent rating is warranted. The Board assigns the 70 percent rating effective May 1, 2014, based on the increase in severity noted by the January 2017 VA examiner following the death of the Veteran’s wife, who treatment records reveal passed away in May 2014. The Board finds a rating in excess of 30 percent prior to May 29, 2013; in excess of 50 percent from May 29, 2013 through April 30, 2014; and in excess of 70 percent thereafter is not warranted. VA examination reports reveal a progression of the Veteran’s service-connected psychiatric disability that is reflected by the staged rating. The initial November 2010 VA examiner noted both symptoms and functional impairment commensurate with the 30 percent rating criteria. The first increase in severity was documented by the May 2013 VA examiner who assessed functional impairment corresponding to the 50 percent rating criteria. This was followed by the increase in severity of symptoms following the death of the Veteran’s wife in May 2014, as noted by the January 2017 VA examiner. Thus, a staged rating is warranted based on the totality of the record, and, to that extent, the Veteran’s appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension is remanded. The Board finds the January 2017 VA examiner provided an inadequate rationale for his negative nexus opinion regarding the Veteran’s service connection claim for hypertension. The examiner simply indicated hypertension was first diagnosed in 2014, several years after the Veteran’s separation from service. In its November 2015 remand directives, the Board specifically asked the selected examiner to address the Veteran’s assertion that his hypertension is the result of his presumed exposure to herbicide agents during service in the Republic of Vietnam. The January 2017 examiner failed to discuss the likelihood the Veteran’s hypertension is due to herbicide exposure or any other of the facts and medical principles involved in the development of hypertension in the Veteran’s case. Thus, a remand of the Veteran’s service connection claim for hypertension is necessary to ensure compliance with the Board’s prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 2. Entitlement to an initial rating in excess of 10 percent for tinea cruris with atopic eczematoid dermatitis. The examiner who completed the January 2017 skin examination indicated the Veteran has scarring and/or disfigurement as a result of his service-connected skin disability, specifically hyperkeratosis of the scalp and ears. Yet, there is no indication the examiner completed a scars/disfigurement disability benefits questionnaire. The Veteran’s service-connected skin disability is rated under Diagnostic Code 7813, which requires consideration under Diagnostic Codes 7800 through 7805 when there is scarring and/or disfigurement of the head, face, or neck. The Board is unable to make the requisite findings under Diagnostic Codes 7800 through 7805 without a completed scars/disfigurement disability benefits questionnaire. Thus, a remand is required to obtain an examination report that is adequate for rating purposes. See 38 C.F.R. § 4.2. 3. Entitlement to a compensable rating for the residuals of a fracture of the left fifth toe is remanded. The examiner who completed the January 2017 foot examination entered the Veteran’s service-connected disability in the box on the examination report that requires specification of the foot injury. The examination report indicates “Section I, Section II, and Section X” must be completed when this box is used to enter a diagnosis. The examiner did not complete Section X, which relates to the rating criteria under Diagnostic Code 5284. Since Diagnostic Code 5284 is used to rate the Veteran’s service-connected disability, the Board finds the January 2017 foot examination report is inadequate for rating purposes. Thus, a remand is required to obtain an examination report that is adequate for rating purposes. See 38 C.F.R. § 4.2. 4. Entitlement to TDIU is remanded. The issue of entitlement to TDIU is inextricably intertwined with the other issues being remanded since the effective date of service connection for hypertension or an increased rating for the residuals of a fracture of the left fifth toe, if granted, could potentially fall before the current effective date of the Veteran’s 100 percent schedular rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a “significant impact” upon another, and that impact in turn could render any appellate review on the other claim meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The matters are REMANDED for the following action: 1. Schedule the Veteran for a new examination to obtain an opinion regarding his service connection claim for hypertension. The selected examiner must provide an opinion addressing whether the Veteran’s hypertension is at least as likely as not (50 percent probability or greater) the result of disease or injury in service, to include his presumed exposure to herbicide agents during service in the Republic of Vietnam. The examiner must provide a complete rationale for his or her opinion, to include a discussion of the facts and medical principles involved in the development of hypertension in the Veteran’s case with an explicit discussion of any potential effects of herbicide exposure. 2. Schedule the Veteran for a new VA skin examination to assess the severity of his service-connected tinea cruris with atopic eczematoid dermatitis. The selected examiner must complete a scars/disfigurement disability benefits questionnaire in addition to the skin disease disability benefits questionnaire. 3. Schedule the Veteran for a new VA foot examination to assess the severity of his service-connected residuals of a left fifth toe fracture. The selected examiner must complete the section of the examination report that corresponds to Diagnostic Code 5284 (other foot injuries) and indicate the severity of the disability as mild, moderate, moderately severe, or severe. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. S. Kyle, Counsel