Citation Nr: 18155337 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 11-05 838 DATE: December 4, 2018 ORDER A disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. An initial disability rating in excess of 10 percent for sciatic nerve radiculopathy of the right lower extremity is denied. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU), prior to August 27, 2012, is remanded. Entitlement to an effective date prior to August 27, 2012, for the award of Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the U.S. Code, is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s PTSD was manifested by occupational and social impairment with deficiencies in some areas, characterized by nightmares, anxiety, depression, a desire to isolate himself, but without more severe manifestations that more nearly approximated total occupational and social impairment. 2. For the entire period on appeal, the Veteran’s sciatic radiculopathy of the right lower extremity has been manifested by mild incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.21, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for an initial disability rating in excess of 10 percent for sciatic nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1966 to August 1968. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in the condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). PTSD The Veteran’s PTSD is evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9411. Under that code, a 70 percent rating 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 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. Ratings are assigned according to the manifestation of symptoms and the extent to which they cause occupational and social impairment. See Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology is the primary focus when deciding entitlement to a given disability rating under the regulation. Vazquez-Claudio, supra. Thus, a veteran may qualify for a given disability rating by demonstrating that he or she suffers from the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms caused the level of occupational and social impairment associated with a particular disability evaluation. Bankhead, supra. The symptoms listed are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Mental health treatment notes from August 2012 show the Veteran was alert and oriented, coherent and logical. He denied any suicidal or homicidal ideation. He reported experiencing depression. In August 2013, the Veteran underwent a VA PTSD examination. At that time, he reported feeling depressed, with reduced concentration and occasional nightmares. He spent time with his family and lamented the loss of some hobbies, such as tennis and bowling, due to arthritis. The Veteran indicated some suicidal thoughts, without plan or intent, in the past. He denied hallucinations and delusions. He indicated experiencing some irritability, with difficulty concentrating, and hypervigilance. On examination, he was found to be cooperative with no overt psychotic symptoms. Treatment notes from 2013 consistently show the Veteran to be communicative, focused, cooperative and coherent. He at all times denied suicidal or homicidal ideation and his insight and judgment were found to be intact. He reported experiencing monthly nightmares during this period. In statements submitted to VA during this period, he reported poor sleep and the need for medication to treat nightmares, anger, depression and anxiety. Treatment notes from 2014 consistently show the Veteran was participating, progressing, cooperative and interactive while participating in therapy. His treatment focused on guilt, triggers and anger. He attended PTSD-specific treatment, and was found to be anxious but without psychotic process and displaying normal attention, concentration and memory. He reported a decline in “sharpness,” which his therapist attributed to age. The Veteran noted that he avoided getting into relationships, romantic or otherwise. In October 2015, the Veteran again underwent a VA PTSD examination. He reported experiencing depression and anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful situations. He reported experiencing a good relationship with his adult children, whom he saw weekly. He golfed and went bowling once a week. The examiner determined that, due to his psychiatric symptoms, the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care and conversation. Treatment notes from 2015 indicate the Veteran was cooperative, with logical thoughts and no evidence of memory impairment or psychosis. He reported a mildly anxious mood, and poor concentration, without suicidal or homicidal ideation. The Veteran reported an improvement in his relationship with his children, and that he was traveling to North Carolina for the winters and, in doing so, enjoyed meeting new people at campgrounds and such. Treatment notes from 2016 indicate the Veteran was alert and fully oriented, with appropriate speech. There was no evidence of a significant disturbance of psychomotor activity, or psychosis. The Veteran reported some anxiety, but his memory was intact and judgment and insight were determined to be good. VA mental health treatment notes from 2017 consistently show the Veteran was fully oriented, cooperative and pleasant, without psychosis or memory problems. He denied any suicidal or homicidal ideation. In a January 2017 treatment note, the Veteran reported that he broke up with a girlfriend, because she was a negative person. Based on the foregoing, the Board finds that a rating in excess of 70 percent for PTSD is not warranted at any time during the period covered by this appeal. The symptomology described in the Veteran’s medical record consistently meets the criteria for his currently-assigned rating. The Veteran experienced continuous depression and difficulty adapting to stressful circumstances, which are criteria for a 70 percent rating. The Board finds that the Veteran does not display the level of mental impairment associated with the next higher 100 percent rating, and that his level of social and occupational functional impairment is in no way total. The lay and medical evidence of record shows that the Veteran’s symptoms resulted, at worst, in occupational and social impairment with deficiencies in some areas throughout the appeal period. See 38 C.F.R. § 4.126 (a). Occupational impairment was characterized by the fact that the Veteran, due in part to his PTSD, felt that he would be unable to work. The Board notes that he is in receipt of a TDIU due, in part, to his service-connected PTSD. The evidence showed the Veteran experienced some social impairment; however, it does not rise to the level of a 100 percent rating. He was able to actively participate in social hobbies, such as bowling, and met his family on a weekly basis for meals. Although he reported difficulties with forming relationships with women, as evidenced by multiple divorces and some failed attempts at dating, the Board finds that this does not meet the level necessary for a 100 percent rating—that is, such difficulties do not indicate total social impairment, especially when taken in tandem with evidence of record showing an ability to maintain relationships with friends and family members. The Board finds that the difficulties the Veteran experienced as a result of his service-connected PTSD are precisely the type contemplated by the 70 percent rating, but no higher. The evidence simply does not suggest that such symptoms occurred at the severity or frequency contemplated by a 100 percent rating, which is characterized by gross impairment of thought processes; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; an intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. For the time period on appeal, the Veteran consistently denied delusions or hallucinations and was not found to be disoriented. He was able to perform activities of daily living, such as bathing and eating. Additionally, the Veteran’s social relationship with his family and friends and his ability to interact with treatment providers and examiners is affirmative evidence against a finding that any intermittent inability to perform activities of daily living were so severe or frequent so as to result in total social impairment. Thus, given the frequency, nature, and duration of the Veteran’s symptoms throughout the appeal, the Board finds that the Veteran’s PTSD was productive of no more than occupational and social impairment with deficiencies in some areas. See 38 C.F.R. § 4.130, Diagnostic Code 9411. Accordingly, a 70 percent rating is warranted for the entire period on appeal. In adjudicating the Veteran’s claim, the Board has considered the applicability of the benefit of the doubt doctrine. However, to the extent that a rating in excess of 70 percent is denied, the preponderance of the evidence is against such aspect of the claim. Therefore, the provisions regarding reasonable doubt are not applicable and the claim must be denied. See 38 U.S.C. § 5107 (b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert, supra. Sciatic Nerve Radiculopathy – Right Lower Extremity In a November 2016 rating decision, the Veteran was granted service connection for sciatic nerve radiculopathy of the right lower extremity (hereinafter, “radiculopathy”) and assigned a 10 percent initial disability rating under 38 C.F.R. § 4.124a, DC 8520. He disagrees with the assigned rating. DC 8520 provides ratings for paralysis of the sciatic nerve. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. In August 2016, the Veteran underwent a VA back examination. At that time, he reported pain that radiated down his right leg. Testing showed mild intermittent pain in the right lower extremity, with mild paresthesias and/or dysesthesias, and mild numbness. No other symptoms were reported. In an October 2016 note, the August 2016 examiner determined that the Veteran’s right sciatic nerve was mildly affected. A review of VA treatment records show the Veteran was given general examinations in September 2016 and August 2017, at which time no report of radiculopathy was made. Based on this evidence, the Board finds that the Veteran’s radiculopathy was best characterized as mild, which warrants the current 10 percent disability rating, and no higher. 38 C.F.R. § 4.124a, DC 8520. Specifically, the August 2016 VA examiner specifically characterized the radiculopathy of the right lower extremity as mild symptoms affecting the sciatic nerve. At the VA examination, the Veteran’s sensory examination was normal. He denied constant pain in his right lower extremity. The examiner found that he had mild intermittent pain, and mild numbness, paresthesias, and/or dysesthesias in his right lower extremity. The VA examination findings are supported by subsequent VA treatment records contained in the claims file. Accordingly, the Board must find that the Veteran is not entitled to an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity. 38 C.F.R. § 4.124a, DC 8520. The Board has considered whether higher schedular ratings are warranted under any other Diagnostic Codes, but finds that none is applicable. None of the examinations or treatment records document that the Veteran’s radiculopathy affects another nerve, besides the currently-considered sciatic nerve. The Board also notes that in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). It acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences certain symptoms, such as numbness and tingling, and he is credible in this regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994) (holding that lay testimony is competent to establish the presence of observable symptomatology). The Veteran’s competent and credible belief that his disability is worse than the assigned disability rating, however, is outweighed by the competent and credible medical examinations that evaluated the true extent of impairment based on objective data coupled with the lay complaints. The VA examiner has the training and expertise necessary to administer the appropriate tests for a determination on the type and degree of the impairment associated with the Veteran’s complaints. For these reasons, greater evidentiary weight is placed on the physical examination findings. Finally, in March 2018, the Veteran’s attorney submitted a letter to VA in which, for the first time, he disputed the effective date assigned for the Veteran’s sciatic nerve radiculopathy of the right lower extremity in the November 2016 rating decision. The Board notes that a claim for an earlier effective date must generally come before the Board as a result of a timely appeal from a decision granting service connection or an increased rating, because a Veteran cannot make a freestanding claim for an earlier effective date absent a claim of clear and unmistakable error (CUE) in a prior rating decision. Rudd v. Nicholson, 20 Vet. App. 296 (2006). As the claim for an increased rating has been denied and the Veteran did not assert that there was CUE in the prior rating decision, any claim for an earlier effective date is a freestanding claim, and is not before the Board. In summary, the Board finds that a disability rating in excess of 10 percent is not warranted under Diagnostic Code 8520 or under any other applicable diagnostic code. Therefore, the provisions regarding reasonable doubt are not applicable and the claim must be denied. See 38 U.S.C. § 5107 (b) (2012); Ortiz, supra; Gilbert, supra. REASONS FOR REMAND Although the Board sincerely regrets the additional delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran’s remaining claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017). A TDIU may be assigned where a veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Referral of a claim to the Director of the Compensation Service for consideration of an extraschedular TDIU is appropriate when a veteran may be unemployable by reason of service-connected disabilities, but the ratings for those disabilities do not meet the schedular rating criteria. See 38 C.F.R. § 4.16 (b). The Board does not have jurisdiction to award an extraschedular rating in the first instance and may not award an extraschedular rating until after the issue of an extraschedular rating has been referred to, and been considered by, the Director of the Compensation Service. See Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). In a January 2018 rating decision, the Veteran was granted TDIU from August 27, 2012. He now seeks an earlier effective date for that grant. In support of this claim, he submitted an October 2017 private examination report, in which a rehabilitation counselor reviewed his record and concluded that the Veteran was unable to work due to his service connected disabilities prior to August 27, 2012. Prior to August 27, 2012, the Veteran was rated at 20 percent for thoracolumbar spine ankylosis spondylitis and 10 percent for tinnitus. As the Veteran did not meet the schedular requirements for the assignment of a TDIU under 38 C.F.R. §4.16 (a), prior to August 27, 2012, and considering the October 2017 private report indicating an inability to work due to service-connected disabilities prior to that date, the Board finds that referral of the Veteran’s claim for TDIU to the Director, Compensation Service, under 38 C.F.R. §4.16 (b), is warranted. As concerns the Veteran’s remaining claim, the adjudication of the issue of entitlement to TDIU prior to August 27, 2012 will have a substantial impact on the merits of the Veteran’s claim for an earlier effective date for DEA benefits under Chapter 35. Therefore, it is inextricably intertwined and must be deferred pending resolution of the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision cannot be rendered unless both issues have been considered). The matters are REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director of Compensation Service, in order to determine whether the Veteran warrants a TDIU on an extraschedular basis prior to August 27, 2012. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jeremy J. Olsen, Counsel