Citation Nr: 18158171
Decision Date: 12/18/18	Archive Date: 12/14/18

DOCKET NO. 13-16 933
DATE:	December 18, 2018
ORDER
A 70 percent rating for posttraumatic stress disorder (PTSD) with depression and a history of alcohol abuse since November 30, 2009, is granted.
REMANDED
1. The issue of service connection for type II diabetes mellitus is remanded.
2. The issue of service connection for a heart disorder is remanded.
3. The issue of service connection for bilateral upper extremity peripheral neuropathy is remanded.
4. The issue of service connection for a right lower extremity disorder other than callouses of the big toe and third toe, to include frostbite residuals and peripheral neuropathy is remanded.
5. The issue of service connection for a left lower extremity disorder, to include below the knee amputation, frostbite residuals, peripheral neuropathy, and cellulitis is remanded.
6. The issue of an initial compensable rating since June 18, 2010, for right foot callouses of the big toe and third toe is remanded.
7. The issue of a total rating for compensation purposes based on individual unemployability due to service-connected disabilities (TDIU) is remanded.
FINDING OF FACT
Since November 30, 2009, the Veteran’s PTSD has caused self-medication with alcohol and drugs, nightmares, sleep impairment, night sweats, sadness and depression, anxiety, anger and irritability, intrusive thoughts, hypervigilance, suspiciousness, memory loss, difficulty concentrating, flashbacks, avoidance, exaggerated startle response, interference in his ability to function effectively at work, interference with interpersonal relationships, intense psychological distress at exposure to cues that symbolize or resemble the traumatic events, persistent distorted cognitions about the cause or consequences of traumatic events leading him to blame himself or others, persistent negative emotional state, markedly diminished interest or participation in significant events, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, panic attacks, occasional difficulty leaving the house, and suicidal ideation.
CONCLUSION OF LAW
The criteria for an initial rating of 70 percent, since November 30, 2009, for PTSD with depression and a history of alcohol abuse have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.130, Diagnostic Code 9411 (2017).
 
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served in the U.S. Army from July 1972 to June 1978.
In April 2017, the Veteran was afforded a hearing before the undersigned Veterans Law Judge sitting at the Oakland, California, Regional Office (RO). 
Entitlement to an initial rating of more than 50 percent since November 30, 2009, for PTSD with secondary depression and history of alcohol abuse. 
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 (2012); 38 C.F.R. Part 4 (2017).
Where there is a question as to which of two disability evaluations shall 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).  
A 50 percent rating for PTSD requires 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.
A 70 percent rating 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.  
A 100 percent rating 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. 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017).  
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).
Where, as here, the issue involves the assignment of an initial rating for a disability following the award of service connection for that disability, the entire history of the disability must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999).
In a September and October 2010 statements, the Veteran reported difficulty maintaining employment and that he had difficulty interacting with other people.
In March 2011, the Veteran was afforded a VA examination. He had symptoms of self-medicating with alcohol, a history of polysubstance abuse also due to self medicating, nightmares, sleep impairment, night sweats, sadness and depression, anxiety, anger and irritability, intrusive thoughts, hypervigilance including doing perimeter checks in the middle of the night, suspiciousness, suicidal ideation, memory impairment, difficulty concentrating, flashbacks, avoidance of war movies and news coverage of the war in Iraq, and an exaggerated startle response. He had been married to his second spouse for 25 years and they had a good relationship. He was estranged from his only child, an adult son. He had no hallucinations or delusions. The examiner stated that his substance abuse “clearly interfered with his ability to function effectively at work and in his interpersonal relationships. He has experienced legal, employment, and domestic problems due to his history of substance abuse.”
In June 2016, the Veteran was afforded another VA examination. The Veteran was still married to his second spouse and they had a good relationship. They enjoyed traveling and spent most of their time together. He was active in the community, including in veterans’ organizations, and frequently spent time with his many friends and family. He had a good relationship with his two brothers and saw his two grandchildren monthly. He remained estranged from his son. He reported having “good days and bad days” and that without his spouse, “I wouldn’t be around.” He reported that he only had about one drink per week and, other than that, had quit drinking in 2009. 
However, he had symptoms of recurrent and distressing memories of in service traumatic events; intense psychological distress at exposure to cues that symbolized or resembled the traumatic events; avoidance of memories, thoughts, or feelings associated with the traumatic events; persistent, distorted cognitions about the cause or consequences of traumatic events leading him to blame himself or others; a persistent negative emotional state; markedly diminished interest or participation in significant events; hypervigilance; exaggerated startle response; concentration difficulties; depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; and difficulty in adapting to stressful circumstances, including work. There was no evidence of hallucinations. He reported that blood and helicopter sounds were triggers for his memories, that he avoided crowds or large groups of people, that he sometimes got depressed, that he would wake up every 2 hours, that he had panic attacks 1 to 2 times per month, and that he sometimes did not want to leave his house due to anxiety and panic.
At his April 2017 Board hearing, the Veteran reported having night sweats, nightmares, doing “perimeter checks” in the middle of the night, having conflicts with co-workers, and having flashbacks. He reported being involved with several veterans’ organizations. He reported that he last worked as the president of a pest control company and as manager of a marble and onyx shop before that.
In a March 2018 VA medical opinion, the June 2016 examiner stated that the Veteran did not have suicidal ideation at the time of the June 2016 examination but that suicidal ideation may fluctuate.
Since November 30, 2009, the Veteran’s PTSD has caused self-medication with alcohol and drugs, nightmares, sleep impairment, night sweats, sadness and depression, anxiety, anger and irritability, intrusive thoughts, hypervigilance, suspiciousness, memory loss, difficulty concentrating, flashbacks, avoidance, exaggerated startle response, interference in his ability to function effectively at work, interference with interpersonal relationships, intense psychological distress at exposure to cues that symbolize or resemble the traumatic events, persistent distorted cognitions about the cause or consequences of traumatic events leading him to blame himself or others, persistent negative emotional state, markedly diminished interest or participation in significant events, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, panic attacks, occasional difficulty leaving the house, and suicidal ideation.
Given these facts, the Board finds that the Veteran’s symptoms most closely approximate a 70 percent rating during the entire period on appeal. 38 C.F.R. § 4.7. The Veteran is not entitled to a 100 percent rating as he was able to maintain employment in high-level positions; had a good relationship with his spouse, brothers, grandchildren, and friends; was involved in several veterans’ organizations; and participated in activities such as traveling.
REASONS FOR REMAND
1. The issue of service connection for type II diabetes mellitus is remanded.
2. The issue of service connection for a heart disorder is remanded.
3. The issue of service connection for bilateral upper extremity peripheral neuropathy is remanded.
4. The issue of service connection for a right lower extremity disorder other than callouses of the big toe and third toe, to include frostbite residuals and peripheral neuropathy is remanded.
5. The issue of service connection for a left lower extremity disorder, to include below the knee amputation, frostbite residuals, peripheral neuropathy, and cellulitis is remanded.
6. The issue of an initial compensable rating since June 18, 2010, for right foot callouses of the big toe and third toe is remanded.
7. The issue of TDIU is remanded.
The matters are REMANDED for the following action:
1. Reasons for the remand:
In an October 2017 remand, the Board directed the RO to obtain medical opinions which considered whether a heart disorder, type II diabetes mellitus, bilateral upper extremity peripheral neuropathy, and right and left lower extremity disorders were caused or aggravated by the Veteran’s service-connected PTSD with depression and history of alcohol abuse, including whether his psychiatric disorder led him to avoid seeking adequate medical treatment for many years and whether that caused or aggravated the disorders on appeal. December 2017 VA medical opinions state that the Veteran was not prevented from seeking appropriate medical treatment and the rationale provided was that the Veteran’s spouse stated that he had not gone to the doctor for 25 years prior to hospitalization for an infection that led to amputation and revealed undiagnosed and uncontrolled type II diabetes mellitus. Remand is necessary to obtain new medical opinions.
Remand of the issue of an initial compensable rating for foot callouses is necessary to determine whether the topical treatment the Veteran used for his disorder affected the body as a whole. See Burton v. Wilkie, 2018 U.S. App. Vet. Claims LEXIS 1314.
Remand of the issue of TDIU is necessary because it is intertwined with the other claims being remanded. See Harris v. Derwinski, 1 Vet. App. 180 (1991).
2. Obtain a medical opinion from a VA psychiatrist or psychologist as to whether the Veteran’s PTSD, and depression may have, at any point, prevented him from seeking appropriate medical treatment for a heart disorder, type II diabetes mellitus, and/or upper and lower extremity disorders.
All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided.
3. AFTER OBTAINING THE ABOVE VA MEDICAL OPINION, obtain a medical opinion from a VA physician other than the one who previously provided opinions in this case. If necessary to respond to the inquiries below, schedule the Veteran for any necessary VA examinations to obtain an opinion as to the nature and etiology of the Veteran’s diabetes, heart disorder, lower extremity disorders, and upper extremity peripheral neuropathy. All indicated tests and studies should be accomplished and the findings reported in detail. 
All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided.
The examiner should address the following:
(a.) whether each of the following was caused by the Veteran’s service-connected PTSD with secondary depression and history of alcohol abuse:
i.  any identified heart disorder.
ii.  type II diabetes mellitus.
iii.  bilateral upper extremity peripheral neuropathy.
iv.  each identified right lower extremity disorder.
v.  each identified left lower extremity disorder.
(b.) whether each of the following was aggravated by the Veteran’s service-connected PTSD with secondary depression and history of alcohol abuse:
i.  any identified heart disorder.
ii.  type II diabetes mellitus.
iii.  bilateral upper extremity peripheral neuropathy.
iv.  each identified right lower extremity disorder.
v.  each identified left lower extremity disorder.
IN PROVIDING THESE OPINIONS, THE PHYSICIAN MUST CONSIDER WHETHER PTSD, DEPRESSION, AND/OR CHRONIC ALCOHOL ABUSE PREVENTED THE VETERAN FROM SEEKING APPROPRIATE MEDICAL TREATMENT, THEREBY CAUSING OR AGGRAVATING EACH IDENTIFIED DISORDER.
The examiner’s attention is drawn to the following:

*Service treatment records. VBMS Entry 6/18/2013.
	--February 1973 complaints of left foot pain 
while walking or when stretching the foot, p. 51.
--February 1973 diagnosis of Achilles paratendinitis, p. 73.
--March 1973 record stating that the Veteran had some residual Achilles paratendinitis in the left foot with some “lat plant 1st MP joint area” with tenderness at sesamoid and diagnosing sesamoiditis, p. 72.
--June 1973 complaints of blisters on both feet, p. 46.
--June 1973 record stating that the Veteran had bilateral foot blisters and traumatic ulcers over the EHL tendons at the hallux, p. 70.
--October 1973 records stating that the Veteran twisted his left knee playing football and stating to rule out a meniscal tear, p. 40, 67.
--October 1973 negative left knee X-ray study, p. 92.
--January 1974 record stating that the Veteran had right heel pain when walking or stretching; that he had a history of having been diagnosed with Achilles paratendinitis in the left foot in March of the prior year but that the Veteran stated that he had bilateral foot pain at that time; and stating a current diagnosis of tendonitis, p. 44.
--April 1974 record indicating that the Veteran had glass in the plantar aspect of his left foot and that he had it cut out, p. 37.
--April 1974 complaints of left foot pain, p. 38.
--May 1974 complaints of left foot pain and a diagnosis of neuritis, p. 36.
--June 1974 record stating complaints of left knee pain, stating that it was apparently chronic from an old injury, and reiterating that the Veteran injured his left knee playing football in October 1973, p. 30.
--October 1974 record stating that he had pain in both feet when applying pressure forward; pain on dorsiflexion of the toes bilaterally, which he stated had been present “since Army tour;” and stating that the Veteran appeared to have bilateral plantar fasciitis, p. 30-31.
--August 1975 record stating that the Veteran had pain in both feet, blisters on both feet, and a hematoma on the left heel, p. 14.
--October 1975 Report of Medical History where the Veteran indicated that he had, in pertinent part, cramps in his legs, broken bones, and foot trouble. The examiner indicated that the broken bone was the left 3rd phalanx and that the foot trouble was tinea, p. 61-62.
--October 1975 Report of Medical Examination stating that the Veteran was, in pertinent part, normal, p. 57-58.
--October 1975 record stating that the Veteran had a right knee injury and was given a walking cast for 7 days, p. 29.
--October 1975 physical profile for right knee injury, p. 11.
--March 1976 right knee strain, p. 15
--June 1977 record stating that the Veteran had laxity in the right knee and stating a diagnosis of “weak quads,” p. 18.
--July 1977 record stating that the Veteran had athlete’s foot in both feet, p. 17.
--August 1977 record stating that the Veteran’s right knee was giving way, p. 17.
--Undated negative right knee X-ray study, p. 91.

*November 2009 private treatment records indicating that the Veteran was hospitalized with a foot infection and diagnosed at that time with uncontrolled type II diabetes mellitus. He had a left below the knee amputation and it was noted that he had cellulitis and chronic peripheral vascular disease in his bilateral lower extremities and had “extensive traumatic linear superficial abrasions over lateral distal right leg without signs of superimposed infection.” VBMS Entry 10/20/2010 part 1, p. 16, 22, 25, 29, 38.

*November 2009 private imaging study of the Veteran’s left foot indicating that he had cellulitis, fasciitis, myositis, and osteomyelitis. VBMS Entry 10/20/2010 part 2, p. 7.

*January 2010 private treatment record stating diagnoses of type II diabetes mellitus, mild congestive heart failure, and cardiac decompensation, and stating that the Veteran had been hospitalized approximately 6 weeks prior with leg gangrene and had had a below the knee amputation on his left leg. VBMS Entry 9/17/2010 part 1, p. 8.

*January 2010 private treatment record stating that the Veteran had mild congestive heart failure. VBMS Entry 9/17/2010 part 2, p. 66.

*February 2010 private treatment record stating that the Veteran’s spouse reported he had not been to a doctor for 25 years prior to his hospitalization and amputation and may have had undiagnosed diabetes during that time. VBMS Entry 7/11/2016 part 2, p. 14.

*April 2010 private treatment record stating that the Veteran did not know he had had diabetes for 25 years and indicating diagnoses of congestive heart failure and venous stasis disease. VBMS Entry 8/17/2011 part 1, p. 10, 52.

*July 2010 written statement from the Veteran detailing in-service foot problems and exposure to cold temperatures.

*September and October 2010 and August 2011 statements from the Veteran where he wrote that he developed cellulitis and frostbite while stationed in Korea.

*May 2011 private treatment record stating that the Veteran had type II diabetes mellitus with diabetic peripheral neuropathy. VBMS Entry 8/17/2011, part 2, p. 1.

*May 2012 VA examination report stating, in pertinent part, diagnoses of type II diabetes mellitus, diabetic peripheral neuropathy in the upper and lower extremities, congestive heart failure, status-post frostbite of the bilateral feet, and status-post amputation of the left leg below the knee.

*September 2012 notice of disagreement (NOD) stating that the Veteran believed his service-connected PTSD with secondary depression and history of alcohol abuse contributed to his diabetes, congestive heart failure, and peripheral neuropathy, and that his bilateral foot cellulitis and frostbite residuals, which he states was documented in his service treatment records, contributed to his left leg below the knee amputation.

*October 2012 VA addendum medical opinion stating that the Veteran did not have a diagnosis of bilateral foot frostbite.

*August 2013 statement from the Veteran and September 2015 VA Form 9 where he described a history of cellulitis and frostbite in both feet.

*February 2015 private treatment record stating that the Veteran had diabetes with neuropathy, retinopathy, and peripheral vascular disease. VBMS Entry 7/11/2016, part 1, p. 6.

*June 2016 VA examination stating a diagnosis of right foot toes callosities. 

*April 2017 Board hearing testimony where the Veteran provided information about the history of all his disorders.

4. Return the file to the VA examiner who conducted the March 2018 VA skin diseases examination. If the examiner is not available, have the file reviewed by a similarly-qualified examiner. If necessary to respond to the inquiries below, schedule the Veteran for a VA examination to obtain an opinion as to the current nature of his right foot callouses. All indicated tests and studies should be accomplished and the findings reported in detail. 
All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided.
The examiner should address whether the topical mupirocin antibiotic that the Veteran has used to treat his diabetic foot ulcers and callouses is used on a sufficient scale to affect the body as a whole. 
In providing this opinion, the examiner must address whether the antibiotic is administered on a large enough scale to affect the body as a whole or whether the topical application works by circulating through the bloodstream, instead of by direct contact with the skin.
(Continued on the next page)
 
5. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board.
 
Vito A. Clementi
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J. E. Miller, Associate Counsel