Citation Nr: 18156505 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-30 284 DATE: December 11, 2018 ORDER A compensable rating effective March 26, 2014, for a right elbow scar is denied. A rating in excess of 50 percent since May 13, 2015, for posttraumatic stress disorder (PTSD) is denied. REMANDED The issue of a rating in excess of 10 percent since March 26, 2014, for right elbow sprain is remanded. The issue of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s right elbow scar has been characterized by no more than a linear scar measuring 7 cm by.5 cm that was well-healed, superficial, and nontender. 2. During the period on appeal, the Veteran’s PTSD has been characterized by no more than impaired short-term memory, depression, anxiety, difficulty sleeping, emotional detachment, reduced reliability and productivity, no suicidal or homicidal ideation, no hallucinations, and no difficulty understanding complex commands. CONCLUSIONS OF LAW 1. The criteria for a compensable rating, effective March 26, 2014, for a right elbow scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.85, 4.118, Diagnostic Code 7801-7805 (2017). 2. The criteria for a rating in excess of 50 percent, since May 13, 2015, for PTSD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.14, 4.21, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1976 to October 1979. Increased Rating Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule For Rating Disabilities. 38 U.S.C. § 1155 (West 2014); 38 C.F.R. Part 4 (2017). Where there is a question as to which of two disability evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of, or overlapping with, the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to a compensable rating effective March 26, 2014, for right elbow scars Scars not of the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 through 7805. The Veteran’s service-connected scars of the right elbow have a noncompensable rating under 38 C.F.R. § 4.118, Diagnostic Code 7805. Under Diagnostic Code 7802, burn scars and scars of other causes not of the head, face, or neck, that are superficial and nonlinear and have an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent rating. 10 percent is the only rating assignable under Diagnostic Code 7802. 38 C.F.R. § 4.118, Diagnostic Codes 7802. Diagnostic Code 7802 includes two note provisions: Note (1): A superficial scar is one not associated with underlying soft tissue damage. Note (2): If multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign, a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, superficial, and are not located on the head, face, or neck. Diagnostic Code 7804 is applicable when scars are unstable or painful. Under Diagnostic Code 7804 a 10 percent rating is warranted when there are one or two scars that are unstable or painful. A 20 percent rating is warranted when there are three or four scars that are unstable or painful. A 30 percent rating is warranted when there are five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7804. Diagnostic Code 7804 includes three note provisions: Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. In June 2014, the Veteran was afforded a VA examination. The clinician noted a linear scar measuring 7 cm by .5 cm that was well-healed, superficial, and nontender. Given these facts, the preponderance of the evidence is against the claim. The Veteran’s right elbow scar does not warrant assignment of a compensable rating as his right elbow scar does not meet the minimum requirement for a compensable rating. A separate compensable rating is not warranted under Diagnostic Code 7804 because his scar is not painful or unstable. 38 C.F.R. § 4.118, Diagnostic Codes 7802, 7804, 7805. 2. Entitlement to a rating in excess of 50 percent since May 13, 2015, for posttraumatic stress disorder (PTSD) The Veteran’s PTSD is presently evaluated as 50 percent. A 50 percent evaluation contemplates symptoms of 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017) A 70 percent evaluation requires occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood due to symptoms such as suicidal ideation, obsessional rituals which interfere with routine activities, intermittently illogical, obscure, or irrelevant speech, 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. Id. A 100 percent evaluation requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, a persistent danger of hurting himself or others, an 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. 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). In a June 2014 treatment note, the Veteran was noted to meet the criteria for depression and PTSD but did not have suicidal or homicidal ideation. In a separate June 2014 treatment note the Veteran also reported insomnia. In a June 2014 lay statement, the Veteran reported that while in service, he found a corpse covered in maggots, and that since that time he had a fear of eating or even seeing rice. The Veteran also noted general difficulty sleeping, concentrating, and eating, and reported continuing depression. The Veteran reported falling through a frozen creek in-service and stated that the incident continues to bring about feelings of near death and has caused a fixation on his survival of the incident. The Veteran also noted a lasting fear and anxiety of driving in the rain due to an in-service jeep accident. The Veteran mentioned that his memories of the in-service incident are intrusive, including while he is on the job. In June 2014, the Veteran’s son reported that his father had difficulty keeping a job and became angry and physically abusive on a frequent basis. The Veteran’s son reported stories that his father had told him regarding his Army experiences and noted his phobia of rice. The Veteran’s son stated that his father refuses to eat at a table when anyone is eating rice and reported that is now obvious to him that his father has “some problems” and has dealt with depression. In a September 2014 statement, a VA psychologist reported that the Veteran took part in a clinical study that required all participants to meet the criteria for PTSD. The clinician also noted that the Veteran was attending ongoing weekly therapy sessions. Treatment notes from September 2014 to October 2014 confirm the Veteran’s participation, but the severity of the Veteran’s PTSD was not discussed in these records. In November 2014, the Veteran was afforded a VA examination. The clinician noted a diagnosis for PTSD with symptoms including depressed mood, anxiety, suspiciousness, panic attacks, difficulty establishing and maintaining effective work and social relationships, and obsessional rituals which interfere with routine activities. The clinician also noted recurrent intrusive memories, avoidance, feelings of detachment or estrangement, hypervigilance, exaggerated startle response, problems with concentration, and occupational impairment with reduced reliability and productivity. In a separate portion of the examination, the clinician noted that the Veteran’s PTSD causes clinically significant distress or impairment in social and occupational areas of functioning. In a May 2015 treatment note, the Veteran reported symptoms of PTSD including difficulties with emotional detachment, irritability, trouble sleeping, and some depression. The clinician noted no suicidal ideation. The clinician also noted a history of methamphetamine dependence. In a November 2015 treatment note, the Veteran reported that he was unemployed but had worked in auto repair and auto finance for 20 years. The clinician noted over five or six incarcerations with the most recent lasting from September 2015 to November 2015. In a December 2015 lay statement, the Veteran’s son reported that his father had become angry and a loner. The Veteran’s son also noted that his father began living on the street and was eventually incarcerated multiple times. In a December 2015 letter, the Veteran’s son stated that his father’s PTSD made him irritable and caused him to have poor hygiene and lose his job. The Veteran’s son noted that his father is a loving grandfather and has a more “normal life” when he is undergoing appropriate PTSD treatment. In a December 2015 letter, a psychologist noted that the Veteran took part in a treatment study for PTSD which included prolonged exposure therapy treatment to help the Veteran face his fears. In December 2015, the Veteran was afforded a VA examination. The Veteran reported intrusive thoughts and dreams, anxiety, hypervigilance, avoidance of crowds, and trouble sleeping. The Veteran denied suicidal and homicidal ideation. The clinician noted depressed mood, panic attacks, disturbances of mood and motivation, and difficulty establishing and maintaining effective work and social relationships. The clinician also stated that the Veteran experienced occupational and social impairment that would cause reduced reliability and productivity. In a separate section of the examination, the clinician noted that the Veteran’s PTSD symptoms would cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. In an April 2016 treatment note, the Veteran was seen to evaluate his PTSD. The clinician noted symptoms including motor restlessness, hand tremors, involuntary movements, abnormal gait, daytime flashbacks and nightmares, but no hallucinations, delusions, or suicidal intent. In the Veteran’s October 2016 hearing testimony, he noted that he had to leave his job at Jiffy Lube due to a brain aneurysm caused by his PTSD. The Veteran reported that he stopped working on May 25th but did not specify the year. Other documentation notes the Veteran stopped working in May 2015. The Veteran also stated that his PTSD made it difficult for him to work with other employees and customers. The Veteran reported that he is un-hirable in his field as a mechanic and beyond the age at which he could learn a new field. In a September 2016 treatment note, the Veteran denied suicidal or homicidal ideation and depression or feelings of hopelessness. In an October 2016 treatment note, the Veteran was noted to have continued PTSD symptoms but the clinician noted no hallucinations or suicidal or homicidal ideation. In September 2017, the Veteran was afforded a VA examination. The Veteran was noted to have a diagnosis for PTSD. The clinician also noted occupational and social impairment with reduced reliability and productivity. The Veteran was also noted to have symptoms including depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran was also noted to have a fear of rice because it reminds him of the maggots he saw on a dead body in-service. The clinician concluded that the Veteran is not a danger to himself or others and reported that the Veteran did not neglect his personal hygiene or appearance, have illogical speech, or have difficulty understanding complex commands. During the period on appeal, the Veteran’s PTSD has been characterized by no more than impaired short-term memory, depression, anxiety, difficulty sleeping, emotional detachment, reduced reliability and productivity, no suicidal or homicidal ideation, no hallucinations, and no difficulty understanding complex commands. The Board has considered the Veteran’s son’s statements indicating that his father had become an angry and bitter loner and has sometimes resorted to living on the street. The Veteran’s son noted poor hygiene during these intermittent times of homelessness. However, the Veteran’s son also noted that while undergoing treatment the Veteran is a loving grandfather and has a more normal life. The Board also notes that the Veteran had maintained employment up to May 2015 as the manager at a Jiffy Lube. For the appellate period, the evidence demonstrates that the Veteran’s PTSD had been productive of symptomatology of a moderate nature, i.e., he exhibits occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships, and is adequately contemplated by the assigned 50 percent rating. As the U.S. Court of Appeals for the Federal Circuit explained, evaluation under § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed in DC 9411 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, 442 (2002). In the context of determining whether a higher 70 percent disability evaluation is warranted, the DC requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships -i.e., “the regulation... requires an ultimate factual conclusion as to the veteran’s level of impairment...” Vazquez-Claudio, 713 F.3d at 117-18 ; see 38 C.F.R. § 4.130, DC 9411. The preponderance of the evidence is against finding that the Veteran’s PTSD caused occupational and social impairment with deficiencies in most areas and inability to establish and maintain effective relationships, particularly given the fact that the Veteran has not demonstrated severe impairment even though he did exhibit a few (such as intermittent neglect of personal hygiene) of the symptoms listed in the exemplar criteria for a 70 percent rating. There was no intermittently illogical, obscure or irrelevant speech. There was no near-continuous panic or depression affecting his ability to function independently, appropriately or effectively. There had been no evidence of impaired impulse control or spatial disorientation and no evidence of suicidal ideation. He had not shown an inability to adapt to stressful circumstances or to maintain effective relationships. There had been no periods of disorientation to time or place, or severe memory loss for names of close relatives or an occupation or home. In short, he does not have the collection of symptoms indicative of the more severe disability. Thus, the Board finds that a 70 percent rating is not warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent since March 26, 2014, for right elbow sprain. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The issue of entitlement to an increased rating for right elbow sprain is remanded for a new VA examination. The issue of TDIU is remanded as intertwined with the Veteran’s right elbow increased rating claim. The case is REMANDED for the following action: 1. Request that the Veteran provide the names and addresses of all health care providers who provided treatment for his right elbow sprain and whose records have not been obtained by VA. After acquiring this information and obtaining any necessary authorization, obtain and associate any pertinent records with the claims file or e-folder. 2. After all available records have been associated with the claims file and/or e-folder, schedule the Veteran for a VA examination to determine the severity of the Veteran’s right elbow sprain. A copy of the Veteran’s claims file, to include a copy of this Remand, should be made available to and reviewed by the examiner. The examination report should reflect that such review was accomplished. a. The examiner must take a detailed history from the Veteran. If there is any clinical or medical basis for corroborating or discounting the credibility of the history provided by the Veteran, the examiner must so state, with a complete rationale in support of such a finding. b. The examiner must provide an opinion as to the severity of the Veteran’s right elbow sprain. The examiner should specifically include range of motion measurements in his examination report. c. As noted above, the examiner should review the record in conjunction with rendering the requested opinion; however, his/her attention is drawn to the following: * In June 2014, the Veteran was afforded a VA examination. The Veteran reported injuring his elbow in service and worsening elbow pain in the mid-1990s. The Veteran’s range of motion included flexion to 140 degrees. The examiner noted pain on palpation and a linear scar measuring 7 cm by .5 cm that was well-healed, superficial, and nontender. * In a January 2015 treatment note, the Veteran reported increased elbow pain and agreed to physical therapy to improve range of motion. However, the Veteran’s range of motion measurements were not recorded. * In a July 2015 treatment note, the Veteran reported pain and stiffness in his elbow with activity. The clinician noted that an April 2014 X-Ray study indicated no bone abnormalities. * In a May 2015 lay statement, the Veteran noted that his right elbow lacks strength and his disability makes it difficult for him to keep his job as a manager at Jiffy Lube. * In the Veteran’s October 2016 hearing testimony, he reported that his elbow condition had worsened. The Veteran also indicated that he could no longer work at Jiffy Lube as a mechanic or as a service writer because both jobs required the extensive use of his elbow. The Board notes that the Veteran was wearing a brace at his October 2016 hearing. 3. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefits sought on appeal remain denied, the Veteran and his representative must be provided with a Supplemental Statement of the Case (SSOC) and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Wozniak