Citation Nr: 18161283 Decision Date: 12/31/18 Archive Date: 12/31/18 DOCKET NO. 15-24 834 DATE: December 31, 2018 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity is remanded. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD is manifested in no worse than occupational and social impairment with deficiencies in most areas such as work, school, family relations and mood due to difficulty adapting to stressful circumstances and inability to establish and maintain effective relationships. 2. The evidence is sufficient to show that the Veteran’s service-connected disabilities make him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.126, 4.130, DC 9411. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.314, 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1964 to October 1966. 1. Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD). The Veteran asserts that his PTSD is more disabling than reflected in his current 70 percent rating. PTSD is evaluated under VA’s General Rating Formula for Mental Disorders. Under the formula, a 70 percent rating is warranted where 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 70 percent rating for PTSD are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 100 percent rating is warranted when there is 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for the Federal Circuit has acknowledged the “symptom-driven nature” of the General Rating Formula and that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability during the examination. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation based on social impairment. 38 C.F.R. § 4.126(b). In a June 2010 statement, Dr. C.W.C. reported that the Veteran’s psychiatric symptoms had recently been exacerbated due to the recent death of his aunt. Dr. C.W.C further reported that the Veteran experiences confusion when in stressful situations such as crowded places due to his anxiety and other PTSD symptoms. The Veteran’s private psychiatric treatment records from 2010 to 2014 consistently show that he was without delusions and hallucinations. In a July 2011 statement, the Veteran reported experiencing memories of Vietnam on a daily basis. He reported sweats, nightmares, poor concentration. He reported worsening symptoms. He reported that due to depression he sometimes goes several days with without washing or bathing. In January 2012 and February 2012 letters, Dr. C.W.C. indicated that the Veteran’s PTSD had significantly worsened. He reported the Veteran has more reexperiencing, avoidance, and hyperarousal symptoms. He noted the Veteran’s social functioning had further deteriorated. In a February 2012 statement, the Veteran’s sister reported that the Veteran experiences increased irritability. In a November 2012 statement the Veteran reported experiencing worsening sleep impairment, concentration, anger, crying spells, and flashbacks. May 2013 and September 2013 private psychiatric treatment notes indicate the Veteran was avoidant and hypervigilant. He remined future oriented and goal- directed. He denied hallucinations, delusions, and suicidal or homicidal ideation or intent. February 2014 and April 2014 private psychiatric treatment notes indicate the Veteran reported that he continued to feel anxious. The Veteran’s grooming and eye contact were fair. His affect was constricted and restricted. His thought processes were circumstantial and tangential. His thought content was without delusions or hallucinations. The Veteran adamantly denied suicidal and homicidal ideation, intent, or plan. Cognitively the Veteran demonstrated deficits in attention and concentration. His insight and judgment were fair. The Veteran was afforded an additional VA psychological evaluation in February 2015. The examiner noted that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that his typical day is filled with appointments. He can dress and shower on his own. He cooks his own meals. He reported that he would visit nursing homes with his dogs. He also helps with their newspaper. He reported he occasionally goes to the movies with friends. The Veteran reported that he is on medication due to his recent surgery and will return to anger management and Vietnam groups once he can drive again. He reported he also attends groups on Tuesday night at the local Vet Center. He reported Cymbalta stabilizes his mood. He noted that he had more patience and is no longer blowing up. He reported he still had panic attacks but can control them with breathing. The Veteran was clean, neatly groomed and appropriately dressed. The Veteran denied hallucinations and delusions. He also denied suicidal and homicidal ideation. The examiner noted that there was no evidence to suggest the Veteran had difficulty with attention and concentration during the evaluation. The Veteran could perform activities of daily living with no assistance. The Veteran also underwent a VA examination in October 2015. The examiner noted that the Veteran has residual PTSD symptoms and frees depressed and down at times. He has vague anxiety due to his life situation. The Veteran reported that the smell of barbeque causes memories of Vietnam. He reported occasional flashbacks but denied manic or psychotic symptoms. There were no suicidal or homicidal ideation. He reported his appetite and sleep are ok. He denied focal deficits or problems with his memory. During the August 2018 hearing, the Veteran reported that he occasionally experiences gross impairment of thought. The Veteran reported experiencing hallucinations and delusions. He also reported inappropriate behavior. He reported feeling disoriented once in a while. The Veteran denied being a danger to himself or others. The Veteran reported that he believes he should be assigned a 100 percent evaluation because of his concentration and the things he does around the house such as making sure all the windows and doors are locked, ensuring no one is behind him, and the nightmares he experiences. The Veteran denied having issues with personal hygiene. During the hearing the Veteran described a typical day and indicated that he is the legal caretaker of someone that resides with him. He reported driving him to appointments. He indicated he goes to the nursing home with his service dog to greet patients during the holidays. He reported attending church once a week. He also reported that he avoids crowds. He reported worsening concentration and short-term memory, which he attributes to old age. The evidence shows that for the entire appeal period, the Veteran’s PTSD more nearly approximates the criteria for a 70 percent rating. The evidence does not show total occupational and social impairment. There is no evidence of gross impairment in thought processes or communication. Throughout the appeal period, the Veteran’s medical treatment records show he consistently denied delusions and hallucinations although he indicated he experienced them during the Board hearing. There is no evidence of grossly inappropriate behavior. There is also no evidence he is in persistent danger of hurting self or others. The evidence consistently shows that the Veteran can complete activities of daily living without assistance. The objective evidence also shows that the Veteran has been able to consistently maintain personal hygiene. The Veteran consistently reported being able to get along with other people although he prefers being alone. He went to church once a week, was a caretaker for someone that lived with him, and took his dog to nursing homes for visits. There is not total social impairment shown, based on this evidence. As such, the Veteran’s symptoms more nearly approximate the criteria for a 70 percent rating, a 100 percent rating is not warranted. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU). Schedular TDIU may be assigned when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disability, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service connected for PTSD rated as 70 percent disabling, sleep apnea rated as 50 percent disabling, diabetes mellitus rated as 20 percent disabling, atherosclerotic heart disease rated as 10 percent disabling, peripheral neuropathy of the left upper extremity rated as 10 percent disabling, peripheral neuropathy of the right upper extremity rating as 10 percent disabling, peripheral neuropathy of the left lower extremity rated as 10 percent disabling, peripheral neuropathy of the right lower extremity rated as 10 percent disabling, and pulmonary tuberculosis rated as noncompensable. The Veteran’s combined rating is 90 percent. Thus, he meets the schedular requirements for TDIU. In addition, the preponderance of the evidence shows that the Veteran’s service-connected disabilities make him unable to secure and follow a substantially gainful occupation. In an August 2011 letter, Dr. C.W.C. reported that the Veteran suffers from extreme symptoms of PTSD that have worsened and prevent him from working. In a November 2012 letter, the Veteran the Veteran reported that he is unable to work due to his peripheral neuropathy and PTSD. He reported that he cannot work, stand, or sit for long periods of time. A December 2012 letter from clinical social worker W.N. indicates that the Veteran experiences symptoms of avoidance, anger, re-experiencing traumas, nightmares, intrusive thoughts, depression, and anxiety, which have all been obstacles that increased his lack of trust and interfere with his recovery process. W.N. further noted that the Veteran would not be a good fit for a job due to his multiple medical conditions along with his PTSD. In a February 2014 letter, Dr. C.W.C. indicated that as a result of the Veteran’s mental health condition he is unable to secure gainful employment. Similarly, in an April 2014 letter from Dr. C.W.C. reported that Veteran is unable to secure gainful employment due to his mental health conditions and associated sleep apnea. During the February 2015 VA examination, the examiner indicated that the Veteran’s ability to understand and follow instructions is considered not impaired. He further stated, “The Veteran’s ability to retain instructions as well as sustain concentration to perform simple tasks is considered not impaired. The Veteran’s ability to sustain concentration to task persistence and pace is considered moderately impaired. The Veteran’s ability to respond appropriately to coworkers, supervisors, or the public is considered moderately impaired. The Veteran’s ability to respond appropriately to changes in a work setting is considered moderately impaired. The Veteran is employable by mental health standards alone and would like to return to school though he notes he has no intention of working again because he is medically unable after his brain surgery.” The examiner further noted the Veteran remains irritable at times and dealing with people does impact his ability to work. He leaves himself a lot of time to accomplish tasks to reduce frustration and is able to plan and make decisions. During the August 2018 hearing the Veteran reported that he last worked full time in 1997 as a postal clerk. He worked as a postal clerk since 1972. He has 2 years of college and some training as an x-ray technician. He retired from the postal service. He reported that he was forced to retire because of his disabilities. In sum, the preponderance of the evidence shows the severity of the Veteran’s service-connected PTSD coupled with the symptoms of his peripheral neuropathy of the bilateral upper and lower extremities make him unable to secure and follow a substantially gainful occupation. TDIU is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the bilateral upper and lower extremities is remanded. VA has a duty, when appropriate, to conduct a thorough and contemporaneous examination of the Veteran that considers records of prior examinations and treatment. See Green v. Derwinski, 1 Vet. App. 121 (1991). The Veteran underwent a VA examination for peripheral neuropathy of all extremities in January 2014 and March 2017, but during the August 2018 Board hearing he reported a worsening of symptoms. Thus, a new examination is necessary. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA was required to afford a contemporaneous medical examination where examination report was approximately two years old). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records from February 2017 to present. 2. Arrange for the Veteran to undergo a VA examination to determine the current severity of his peripheral neuropathy of the bilateral upper and lower extremities. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel