Citation Nr: 1808724 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 09-32 415A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for diabetes mellitus. 2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy. 3. Entitlement to service connection for bilateral upper extremity peripheral neuropathy. 4. Entitlement to service connection for a bilateral hearing loss disability. 5. Entitlement to service connection for a left knee anterior cruciate ligament disability. 6. Entitlement to an evaluation in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD). 7. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD J. Trickey, Associate Counsel INTRODUCTION The Veteran had active service in the United States Army from October 1966 to October 1969, from June 3, 1985 to September 13, 1985, and from June 214, 1996 to August 16, 1996. The Veteran had an additional 29 years of inactive service in the Army Reserve. This matter comes to the Board of Veterans' Appeals (Board) on appeal from January 2009 and April 2010 decisions of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas. The Veteran provided testimony at a hearing before the undersigned. A transcript of the hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran was present in the Republic of Vietnam and therefore is presumed to have been exposed to herbicides. 2. Diabetes mellitus, type II, is presumptively related to herbicide exposure during active duty. 3. The Veteran's bilateral upper and lower extremity peripheral neuropathy is associated with his diabetes mellitus, type II. 4. Resolving reasonable doubt in the Veteran's favor, the Veteran has bilateral hearing loss that began during active service. 5. The Veteran's currently diagnosed left knee disability is likely the result of his active service. 6. The Veteran's PTSD disability is manifested by occupational and social impairment, with deficiencies in most areas due to anxiety, nightmares, panic-like symptoms, anger, irritability, depressed mood, fatigue, feelings of guilt, and sleep disturbance resulting in difficulty in adapting to stressful circumstances (including work or a worklike setting). 7. The Veteran is service connected for posttraumatic stress disorder, evaluated at 70 percent disabling, effective February 13, 2008. 8. The Veteran is precluded from securing or following a substantially gainful occupation as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for diabetes mellitus, type II, have been met. 38 U.S.C. §§ 1101, 1110, 1112, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2017). 2. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities, secondary to diabetes mellitus, are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 3. The criteria for entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, secondary to diabetes mellitus, are met. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). 4. The criteria for service connection for bilateral hearing loss have been met. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309(a) (2017). 5. The criteria for service connection are met for a left knee disability. 38 U.S.C. §§ 1110, 1112, 1113 (2012); 38 C.F.R. § 3.303 (2017). 6. With resolution of doubt in the Veteran's favor, the criteria for an evaluation of 70 percent-but no higher-for the Veteran's service-connected PTSD have been met. 38 U.S.C. §§ 1110, 1131, 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9411 (2017). 7. The criteria for a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Veterans are entitled to VA disability compensation benefits if they develop a disability "resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty." 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established for any disability which is proximately due to or the result of a service-connected disease or injury. See 38 C.F.R. § 3.310 (2017). VA shall consider all information and lay and medical evidence of record in a case and 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; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Diabetes Mellitus and Lower and Upper Extremity Peripheral Neuropathy The Board finds that service connection for diabetes mellitus is warranted. First, there is a diagnosis of diabetes mellitus in the post-service record. See VA treatment record dated September 2013. Accordingly, a disability during the appellate period has been demonstrated. See McClain v. Nicholson, 21 Vet. App. 319, 321-23 (2007). Second, service personnel records show the Veteran has qualifying service in the Republic of Vietnam; the Board finds there is a presumption that the Veteran was exposed to herbicides. 38 U.S.C. § 1116(a)(3); 38 C.F.R. §§ 3.307, 3.309. Given the Veteran's conceded exposure to herbicide, presumptive service connection for diabetes mellitus is granted. 38 C.F.R. § 3.307(a)(6)(ii). The Board further finds that service connection for peripheral neuropathy is warranted. VA records indicate the presence of upper and lower extremity polyneuropathy and neuropathy. See VA treatment record dated September 2013. In addition, evidence reflects that upper and lower neuropathy is proximately due to the Veteran's diabetes. Given the Board's determination of service connection for diabetes mellitus, and the relationship between upper and lower neuropathy and the Veteran's diabetes, service connection bilateral upper and lower extremity peripheral neuropathy is warranted. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.310 (2017). Bilateral Hearing Loss The Board finds that service connection for bilateral hearing loss is warranted. First, the Veteran's hearing acuity meets the criteria for a hearing loss disability under 38 C.F.R. § 3.385. See VA examination dated April 2009. Therefore, the requirement for a present disability has been met. As to in-service incurrence of disease or injury, the Veteran has provided competent and credible statements that his duties as an infantry mortar man in service exposed him to acoustic trauma and hazardous noise levels. Specifically, the Veteran provided competent and credible testimony before the undersigned about hearing loss from his being positioned closely to a firing mortar tube, resulting in significant noise exposure. Service audiometry results dated October 1966 and August 1969 show threshold increases from negative values at 500 hertz to 2000 hertz on entrance to positive or neutral values on separation. The Board finds there is sufficient evidence of acoustic trauma to demonstrate in-service injury. Thus, the remaining question is whether the Veteran's hearing loss is causally related to his complaints of acoustic trauma in service. On this issue, the evidence is in conflict. In connection with his claim, the Veteran was afforded a VA examination in April 2009 where the VA examiner opined that it was less likely than not that the Veteran's hearing loss was caused by his active service due to normal hearing test results at separation. However, the Board notes the VA examiner did not account for June 1981 service records showing the Veteran reported a history of hearing loss in the right ear from his duties in Vietnam, and the threshold shift in hearing acuity during service. In contrast, the Veteran provided competent and credible testimony before the undersigned regarding an onset of progressive hearing loss in service and continuing to the present. The Veteran also submitted an opinion from R.N., Ph.D. dated June 2010 that, based on audiometry results, the Veteran's hearing loss had a high probability of being incurred in service due to acoustic trauma. This opinion was accompanied by audiometric testing. With regard to nexus, the Board finds that the evidence is at least in equipoise. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Having satisfied the elements of service connection, service connection for bilateral hearing loss is warranted. Left Knee Anterior Cruciate Ligament The Board finds that service connection for a left knee anterior cruciate ligament disability is warranted. With regard to a present disability, a February 2011 private treatment report shows the Veteran manifests degenerative arthritis of the left knee with a history of anterior cruciate ligament (ACL) repair. Therefore, the requirement for a present disability has been met. With regard to an in-service event, the Veteran provided competent and credible testimony before the undersigned that he incurred significant knee injury and underwent treatment in service as a result of combat operations in the Republic of Vietnam. Here, the Veteran's statements concerning combat with the enemy implicate 38 U.S.C. § 1154(b). Pursuant to that statute, when a veteran has engaged in combat with the enemy, satisfactory lay or other evidence "shall be accepted as sufficient proof of service connection" for certain diseases or injuries, even if "there is no official record of such incurrence or aggravation in such service." Id. Section 1154(b)'s presumption may be rebutted only by clear and convincing evidence. Id. Application of section 1154(b) requires a finding that the Veteran was engaged in combat. See Gaines v. West, 11 Vet. App. 353, 359 (1998). The Veteran is the recipient of the Purple Heart. Given the Veteran's testimony and medal award, the Board finds that the combat presumption of section 1154(b) applies to this case. Consequently, the Board finds the Veteran's reports of in-service onset to be credible, in-service onset can be conceded, and the second element is also met. The remaining question is whether there is a medical nexus between the Veteran's in-service left knee injury and his current left knee disability. Here, the evidence supports a finding of nexus. In that regard, a February 2011 opinion from Dr. M.K. concluded that the Veteran's left knee degenerative joint disease and anterior cruciate ligament repair were more likely than not due to left knee injury in service. Dr. M.K. reasoned that the Veteran's imaging results showed arthritis only in the left knee and that the Veteran's prior injury in service, an ACL tear, resulted in his degenerative joint disease of the left knee. Further, the Veteran testified at the September 2017 hearing before the undersigned that he suffered continuity of left knee symptomatology since service to the present; the Board finds this assertion to be credible. Layno, 6 Vet. App. at 469. Thus, the Board finds that the evidence preponderates in favor of a finding of nexus. Having satisfied the elements of service connection, the Board finds that service connection for a left knee anterior cruciate ligament disability is warranted. Increased Rating Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321(a), 4.1 (2017). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, Diagnostic Code 9411 which notes that PTSD is to be rated under the General Rating Formula for Mental Disorders. Under Diagnostic Code 9411, a 50 percent rating is warranted for 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 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 worklike setting); 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. The symptoms listed in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list, but rather 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 (2002). 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 solely on the basis of social impairment. 38 C.F.R. § 4.126 (2017). Analysis The Board finds that a uniform 70 percent evaluation is warranted for the appellate period. The Veteran's PTSD is assigned an evaluation of 30 percent effective February 13, 2008 and 50 percent effective March 7, 2011. In connection with his claim, the Veteran was afforded a VA examination in November 2008. The November 2008 VA examiner noted the Veteran manifested PTSD with symptoms of anxiety, nightmares, panic-like symptoms, anger, irritability, depressed mood, fatigue, feelings of guilt, and sleep disturbance. While the VA examiner indicated that the Veteran's overall occupational and social impairment was mild, the Board notes that diagnostic testing, the MMPI-II, showed significant minimization of psychological difficulties and "a good deal of break through depression." The November 2008 VA examiner also noted significant avoidance, difficulty recalling details of traumatic events, and mild interpersonal detachment. Additionally, the examiner noted that a March 2008 VA examiner had assigned a Global Assessment of Functioning (GAF) score of 52, indicating moderate symptoms (e.g., flat affect and circumlocutory speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). The Veteran submitted a June 2010 report from A.F., M.D. noting the Veteran had severe symptoms of PTSD with depressed mood, sleep disturbance, anxiety, daily panic attacks, and interpersonal problems at home and work. Dr. A.F. opined that the Veteran would be unemployable due to his PTSD symptoms if he were to lose his job and also noted that the Veteran had recently lost a supervisory role due to irritability and depression. The Veteran was afforded a VA examination in March 2011. The examiner noted the Veteran was ritualistic with regard to extreme hypervigilance of his surroundings and avoidance of military stimuli. The November 2011 VA examiner assigned a GAF score of 50, indicating serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job, cannot work). The Board notes that the November 2008, June 2010, and March 2011 examinations are consistent with the clinical information of record, as well as the Veteran's statements contained in the claims file. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board notes that the Veteran's PTSD symptomatology has been generally stable and severe throughout the appellate period and is most closely approximated by the criteria for a 70 percent evaluation. In particular, the Veteran exhibited serious symptoms of anxiety, nightmares, panic-like symptoms, anger, irritability, depressed mood, fatigue, feelings of guilt, a chronic sleep disturbance, avoidance, difficulty recalling details of traumatic events, and mild interpersonal detachment throughout the appellate period. The Board interprets this evidence as indicating a significant occupational and social impairment; most accurately encompassed by the criteria for a 70 percent evaluation indicating an occupational and social impairment, with deficiencies in most areas. The Board does not, however, find the criteria for a 100 percent evaluation are more nearly approximated by the Veteran's symptoms; there is no evidence that the Veteran has suffered symptoms of the severity indicated for a 100 percent rating, such as persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation to time and place, or memory loss for names of close friends, his own occupation, or his own name. The Board finds an evaluation of 70 percent-but no higher-for PTSD is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.130, Diagnostic Code 9411 (2017). TDIU A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran is service connected for a posttraumatic stress disorder, evaluated at 70 percent disabling, effective February 13, 2008. The Veteran meets the schedular percentage requirements for consideration of a total disability rating under 38 C.F.R. § 4.16(a). The Board must consider the Veteran's employment history, educational and vocational attainment in determining if he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). The Veteran's educational and occupational history reflects that he has two years of college and worked last for the United States Postal Service in maintenance. See VA Form 21-8940 Application for Increased Compensation Based on Unemployability dated November 2014. The evidence reflects that the Veteran has a work history that is limited to occupations involving physical labor as an infantryman and maintenance. The record supports a finding that the Veteran's service-connected disabilities render him unemployable. The Veteran's PTSD disability has been severe throughout the appellate period as noted above, resulting in significant occupational impairment. See VA examinations dated November 2008 and March 2011. The Board also notes that the June 2010 opinion from Dr. A.F. supports the Veteran's contention that his service-connected PTSD renders him unemployable. Further, the Veteran has additional disabilities, including but not limited to, diabetes mellitus, peripheral neuropathy of the upper and lower extremities, and a left knee disability. The Board finds that the severity of the Veteran's service-connected PTSD and other service-connected disabilities likely render it impossible for the Veteran to secure and maintain substantially gainful employment. With resolution of doubt in the Veteran's favor, the Board finds that entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). ORDER Service connection for diabetes mellitus is granted. Service connection for bilateral lower extremity peripheral neuropathy is granted. Service connection for bilateral upper extremity peripheral neuropathy is granted. Service connection for a bilateral hearing loss disability is granted. Service connection for a left knee disability is granted. An initial evaluation of 70 percent for post-traumatic stress disorder is granted. A total disability rating due to individual unemployability is granted, subject to the applicable laws and regulations governing the payment of monetary benefits. ____________________________________________ A. S. CARACCIOLO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs