Citation Nr: 1822771 Decision Date: 04/17/18 Archive Date: 04/25/18 DOCKET NO. 14-12 156 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a rating in excess of 30 percent prior to June 1, 2017, and in excess of 70 percent beginning June 1, 2017, for post-traumatic stress disorder (PTSD). 2. Entitlement to a compensable rating for bilateral hearing loss. 3. Whether new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for lumps on the Veteran's right inner thigh. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD E. Jones III, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from August 1964 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal of a January 2013 rating decisions of the Houston, Texas, Regional Office (RO) of the Department of Veterans Affairs (VA). In December 2017, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ); a transcript of the hearing is associated with the claims file. The Veteran stated at the hearing that he has been treated for a growth on his right lung. The Board requests that the RO mail VA Form 21-526 to the Veteran, should he wish to file a claim for service connection for this condition. The issue(s) of service connection for bilateral hearing loss and lumps on the Veteran's right inner thigh are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDINGS OF FACT 1. Prior to June 1, 2017, the Veteran's PTSD was productive of a disability picture that more nearly approximated that of occupational and social impairment with reduced reliability and productivity. 2. Beginning on June 1, 2017, the Veteran's PTSD was productive of a disability picture that did not more nearly approximate that of total occupational and a social impairment. 3. A March 2011 rating decision denied service connection for a lump on the Veteran's right scrotal inner thigh. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 4. The evidence associated with the claims file subsequent to the March 2011 rating decision is not cumulative or redundant of evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for lumps on the Veteran's right inner thigh. CONCLUSIONS OF LAW 1. For the period on appeal prior to June 1, 2017, the criteria for a rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). 2. For the period on appeal beginning June 1, 2017, the criteria for a rating in excess of 70 percent for PTSD have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9411 (2017). 3. The March 2011 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2017). 4. New and material evidence sufficient to reopen the claim of service connection for lumps on the Veteran's right inner thigh has been received. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a),(c) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information and any medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA notice letters must also include notice of a disability rating and an effective date for award of benefits if service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the RO provided a notice letter to the Veteran in March 2012. The letter notified the Veteran of what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was told to inform VA of any additional information or evidence that VA should have, and was told to submit evidence to the RO in support of his claim. The letter also provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. The content of the letter complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of his claim. The Board notes that there has been no allegation from the Veteran or his representative that he has been prejudiced by any notice defects. See Shinseki v. Sanders, 556 U.S. 396 (2009). Thus, there is no prejudice to the Veteran in the Board's considering the issue on its merits. The Board finds that the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board further finds that all relevant evidence has been obtained, and the duty to assist requirements have been satisfied. All available service treatment records (STRs) were obtained, and VA medical records and private medical records are associated with the claims file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to this claim. The Veteran underwent VA examinations in April 2012 and June 2017, to obtain medical evidence regarding the nature and severity of his PTSD. The Board finds the VA examinations adequate for adjudication purposes. The examinations were performed by medical professionals based on review of the claims file, solicitation of history and symptomatology from the Veteran, and examination of the Veteran. The examination reports are accurate and fully descriptive. Opinion is provided as the severity of the disability. As such, the Board finds that the Veteran has been afforded adequate examinations. The Board finds that VA's duty to assist has been met. See 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the duties to notify and assist the Veteran have been met, and no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. II. Increased Rating for PTSD The Veteran contends that he is entitled to a rating in excess of 30 percent prior to June 1, 2017, and in excess of 70 percent thereafter, for PTSD. In particular, he alleges symptoms including constant nightmares, sleepless nights, anger management issues, family conflict, lack of feeling for his children and grandchildren, three failed marriages, a history of emotional cruelty to spouses, road rage, jitteriness, irritability, a history of work troubles caused by anger at supervisors and problems with authority figures, need to work with a small group and at night, inability to be around more than two or three people at a time, social isolation, going to the grocery store at night to avoid crowds, inability to travel by airplane due to crowded security lines, flashbacks, and trouble with directions to buildings. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The rating criteria for rating mental disorders, including PTSD, reads as follows: a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions of 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. 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 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); inability to establish and maintain effective relationships. Id. A 50 percent rating 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 effective work and social relationships. Id. A 30 percent rating requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. The Secretary of VA recently amended the portion of the Schedule for Rating Disabilities dealing with psychiatric disorders and the associated adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). The amended provisions do not to apply to claims that were pending before the Board (i.e., certified for appeal to the Board) on or before August 4, 2014, even if such claims are subsequently remanded to the AOJ. This appeal was certified to the Board in October 2017. Therefore, the new version of the Schedule for Rating Disabilities is for application in this appeal. The Board finds that for the period of appeal prior to June 1, 2017, the Veteran's PTSD warrants a rating of 50 percent under Diagnostic Code 9411. With regard to mood disturbances, at VA treatment visits in 2014 and 2015, the Veteran reported frustration, anger, irritability, and anxiety. On mental status examination in June 2014, his mood was anxious and irritable. Treatment notes in 2016 show increasing agitation and anger. During this time period, the Veteran reported a history of difficult work relationships, including anger management problems in his last workplace and need to work in small groups and at night when fewer people were around. He reported a history of three failed marriages due to anger and inability to connect emotionally with others. With regard to memory, at a VA behavioral health visit in March 2014, the Veteran noted short-term memory problems such as difficulty remembering names, appointments, bills to be paid, and leaving lights or the stove on. Testing showed some impairment in cognitive flexibility and executive function. Based on these factors of mood disturbance, relationship difficulties, and memory impairment, the Board finds that prior to June 1, 2017, the Veteran's symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity, to warrant a 50 percent rating for PTSD. During this time period, the Veteran's PTSD did not warrant a 70 percent rating because he did not have occupational or social impairment in most areas. He did not report suicidal ideation or panic attacks. Although he endorsed anger problems, there is no indication of extended violence. The record does not show the Veteran was unable to attend to personal appearance or hygiene. Although he had difficulty establishing and maintaining social relationships, he was not completely unable to do so. He reported close relationships with his wife and his sister. Although these areas of functioning are only examples of the kinds of impairment typical of a 70 percent rating, based on the Board's review of the Veteran's overall functioning during this period, a rating in excess of 50 percent is not warranted. Turning to the period beginning June 1, 2017, the Board finds that during this period, a rating in excess of 70 percent under Diagnostic Code 9411 for PTSD is not warranted. At the June 2017 VA examination, the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent rating for PTSD. This was based on symptoms of anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mood disturbances, difficulty maintaining relationships and adapting to stressful circumstances, and impaired impulse control. Notably, the record does not reflect, and the Veteran himself does not report, functional limitations in excess of the 70 percent level. Although he has noted occasional memory problems, these have not risen to the level of losing memory of his own name or close relatives' names. He is not in persistent danger of hurting himself or others, though he reports occasional violent behavior in the past. He is able to perform most activities of daily living, such as maintaining basic personal hygiene. In sum, for the period of appeal beginning on June 1, 2017, the weight of the competent and credible evidence preponderates against the assignment of a rating in excess of 70 percent for the Veteran's PTSD. The probative evidence establishes that the PTSD does not more nearly approximate total occupational and social impairment, which would warrant a 100 percent rating under Diagnostic Code 9411. III. New and Material Evidence The Veteran contends that he has presented new and material evidence sufficient to reopen his denied claim for service connection for lumps on his right inner thigh. The Board agrees. The Veteran claimed in September 2010 that lumps on his inner right thigh were related to herbicide exposure in Vietnam. This claim was denied, both as to presumptive and direct service connection, in a March 2011 rating decision. The Veteran sent in a request for reconsideration in August 2011. The AOJ informed the Veteran in March 2012 that they had received his request to reopen and he had to submit new and material evidence or file a notice of disagreement with the March 2011 rating decision within one year of the March 30, 2011 rating decision, or file a motion for clear and unmistakable error. The Veteran did not file a notice of disagreement in April 2012. The RO regarded this as a request to reopen the claim for new and material evidence, and denied the request in a January 2013 rating decision. Thus, because the Veteran did not submit new and material evidence within one year of the rating decision or timely file a notice of disagreement within one year of the rating decision, the March 2011 rating decision is final. 38 C.F.R. § 20.302(a). Where a claim has been finally adjudicated, a claimant must present new and material evidence to reopen the previously denied claim. 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted, and material evidence is evidence that, by itself or when considered with previous evidence, relates to an unproven fact necessary to substantiate the claim. Id. Newly submitted evidence is generally presumed to be credible. Justus v. Principi, 3 Vet. App. 510, 513 (1992). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). The Board must initially determine whether new and material evidence has been submitted to reopen the service connection claim prior to addressing the claim on its merits. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996); Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). The evidence of record at the time of the March 2011 rating decision consisted of the Veteran's service treatment records and his service connection claim. Evidence received since the rating decision includes a December 2015 pathology report for a right inner thigh skin lesion showing seborrheic keratosis, as well as the Veteran's lay statements that he has experienced skin lesions since service and his testimony that the lumps have spread to other parts of his skin such as his neck. This evidence is new as it was not previously submitted to agency decision makers, and material as it addresses the unestablished facts of in-service incurrence and nexus. It is not redundant and, when considered with previous evidence of record, raises a reasonable possibility of substantiating the claim. Because the record contains new and material evidence relating to the Veteran's claim for service connection for lumps on the right inner thigh, reopening is warranted. ORDER For the period of appeal prior to June 1, 2017, a rating of 50 percent for PTSD is granted under Diagnostic Code 9411. For the period of appeal beginning June 1, 2017, a rating in excess of 70 percent for PTSD is denied. New and material evidence having been received, the claim for service connection for lumps on the Veteran's right inner thigh is reopened; the claim is granted to this extent only. REMAND This case requires remand to afford the Veteran a new audiological examination and an examination for his skin condition. At the December 2017 Board hearing, the Veteran and his wife testified that his hearing has worsened since his most recent VA examination in April 2012. In particular, they testified that the Veteran has difficulty hearing conversations, especially in noisy environments, has difficulty hearing bird sounds outdoors, must turn the television volume up, does not use a cell phone due to hearing problems, and requires hearing aids. When a claimant asserts that the severity of a disability has increased since the most recent VA examination, an additional examination is appropriate. Snuffer v. Gober, 10 Vet. App. 400 (1997). The Veteran contends that he has experienced skin lumps on his right inner thigh since service, and that these lumps have spread to other parts of his skin, including his neck. The record is silent as to this condition, except for a December 2015 biopsy showing seborrheic keratosis. An examination is needed to evaluate this condition and provide an opinion as to its relationship to service. Accordingly, the case is REMANDED for the following actions: 1. Arrange for the Veteran to undergo a VA examination to evaluate the severity of his bilateral hearing loss. The examiner should review the entire claims file, including the hearing transcript. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should comment on lay statements regarding the Veteran's hearing loss symptoms, including allegations of difficulty hearing normal speech, difficulty hearing in noisy environments, difficulty hearing bird sounds outdoors, need to turn the television volume up, inability to use a cell phone due to hearing problems, and a need for hearing aids. 2. Arrange for the Veteran to undergo a VA examination to evaluate the nature and etiology of his skin condition(s). The examiner should review the entire claims file, including the hearing transcript. All indicated studies, tests, and evaluations deemed necessary should be performed. The examiner should provide an opinion as to the following: a) Clarify the diagnosis for any current skin condition. The examiner should comment on the Veteran's lay statements regarding right inner thigh lumps since service and the spread of lumps to other parts of the Veteran's skin. b) whether it is at least as likely as not (50 percent or greater probability) that any currently diagnosed skin condition is related to service. The examiner should comment on the Veteran's lay statements regarding right inner thigh lumps since service. 3. After ensuring that the requested actions are completed, VA should conduct any other development actions deemed warranted and readjudicate the claim on appeal. If the benefit sought is not fully granted, the Veteran should be furnished a supplemental statement of the case and given the opportunity to respond thereto. Thereafter, the case should be returned to the Board for appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ H. SEESEL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs