Citation Nr: 20022587 Decision Date: 04/01/20 Archive Date: 04/01/20 DOCKET NO. 14-15 163 DATE: April 1, 2020 ORDER Service connection for conversion disorder, claimed as visual impairment, is granted. Prior to November 19, 2013, an initial rating of 70 percent for posttraumatic stress disorder (PTSD) is granted. A rating in excess of 70 percent for PTSD is denied. A total disability rating based on individual unemployability (TDIU) is granted during the period on appeal prior to November 19, 2013. REMANDED The issue of entitlement to service connection for a disability manifested by visual impairment, other than conversion disorder, is remanded. FINDINGS OF FACT 1. The probative evidence of record demonstrates that it is at least as likely as not that the Veteran’s conversion disorder was caused or aggravated by her service-connected PTSD. 2. Throughout the appeal period, the Veteran’s service-connected PTSD has been manifested by no more than occupational and social impairment with deficiencies in most areas. 3. The probative evidence of record demonstrates that during the period on appeal prior to November 19, 2013, it is at least as likely as not that the Veteran’s service-connected disabilities rendered her unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for conversion disorder have been met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.310 (2019). 2. The criteria for an initial rating of 70 percent, but not higher, for PTSD have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2019). 3. During the period on appeal prior to November 19, 2013, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1978 to April 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2013 and May 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. This matter was previously before the Board in April 2018, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Additionally, service connection may also be established for a disability which is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disability may be service-connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439 (1995). 1. Entitlement to service connection for visual impairment During the September 2017 Board hearing, the Veteran’s attorney indicated that the Veteran is seeking service connection for visual impairment attributable to a conversion reaction caused by her anxiety and PTSD, as well as visual impairment caused by a corneal condition. The issue of entitlement to service connection for a disability manifested by visual impairment, other than conversion disorder, is addressed in the remand portion below. Upon review of the record, the Board finds that entitlement to service connection for conversion disorder is warranted. VA treatment records show that the Veteran reported symptoms of facial tics, severe photophobia, and loss of vision in both eyes beginning around 2007. A May 2009 VA neurology treatment record noted that the Veteran was recently seen by an ophthalmologist and a neuro-ophthalmologist, and neither treatment provider found an organic reason for the Veteran’s loss of vision. The neurologist indicated that the Veteran’s presentation was consistent with a diagnosis of conversion disorder and recommended that the Veteran follow up with her mental health treatment provider, as her symptoms could improve with adequate management of her anxiety and PTSD. A subsequent VA neuro-ophthalmology treatment record likewise indicates that no physiologic basis was found for the Veteran’s claimed loss of sight, and the diagnosis was non-medically explained decreased vision. Similarly, an April 2010 VA mental health treatment provider indicated that Veteran appeared to experience loss of sensory function in response to some of her significant life stressors, noting that neurologists and ophthalmologists have ruled out any neurological etiology for her visual impairment. The treatment provider indicated that the condition did not appear to be feigned, and it was likely associated with the Veteran’s inability to cope with some of her traumatic experiences. The diagnosis was conversion disorder. Based on the foregoing, the Board finds that it is at least as likely as not that the Veteran’s conversion disorder was caused or aggravated by her service-connected PTSD. Accordingly, service connection for conversion disorder is granted. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). 2. Entitlement to higher ratings for PTSD, evaluated as 50 percent disabling prior to November 19, 2013, and 70 percent disabling thereafter Pursuant to the General Rating Formula for Rating Mental Disorders (General Rating Formula), a 50 percent rating is assigned 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 such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent rating is assigned 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or effects thereof, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under Diagnostic Code 9411 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms associated with the Veteran’s PTSD and their effect on the level of occupational and social impairment. Id. When evaluating the level of disability from a mental disorder, VA 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(b) (2019). Upon review of the record, the Board finds that an initial 70 percent rating, but not higher, is warranted throughout the period under review. VA treatment records during the period on appeal prior to November 19, 2013, show that the Veteran exhibited symptoms of anxiety, flashbacks, nightmares, anger, hypervigilance, exaggerated startle response, avoidance, and depressed mood. As noted above, she also reported facial tics, photophobia, and loss of vision, which her treatment providers attributed to conversion disorder caused by her inability to cope with traumatic experiences and psychological stressors. The Veteran reported having anxiety attacks about four to five times a week, manifested by tics, shakiness, sweaty palms, stuttering, heart palpitations, chest pain, shortness of breath, nausea, sweating, and hot flashes. She also reported being afraid to go places alone. It was noted that the Veteran was unemployed, had difficulty with familial relationships, did not have any romantic relationships, lost custody of her granddaughter in July 2009, and was homeless until December 2011. In January 2010, a mental health treatment provider indicated that the Veteran was becoming more disorganized and increasingly somatically focused, made little progress in terms of her housing and finances, and was increasingly hindered by her conversion disorder symptoms. An April 2010 Social Security Administration (SSA) Mental Residual Functional Capacity Assessment indicates that the Veteran’s psychological symptoms caused moderate difficulties in maintaining social functioning and marked difficulties in maintaining concentration, persistence, or pace. The clinician who evaluated the Veteran indicated that she was markedly limited in her ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances. She was also markedly limited in her ability to sustain an ordinary routine without special supervision, to complete a normal workday or workweek without interruptions from psychological symptoms, to perform at a consistent pace without an unreasonable number of rest periods, to interact appropriately with the general public, and to respond appropriately to changes in a work setting. The clinician opined that the Veteran was able to maintain attention for two hours at a time, but she would be unable to persist at even simple tasks for an eight-hour period without an inordinate amount of one-to-one support or supervision. The clinician also opined that the Veteran could tolerate the minimal social demands of simple-task settings, but she could not tolerate sustained contact with the general public or simple changes in routine without an inordinate amount of one-to-one support or supervision. The Veteran underwent a VA mental health examination in May 2013, during which she endorsed symptoms of depressed mood, anxiety, avoidance, feelings of detachment or estrangement from others, suspiciousness, chronic sleep impairment, difficulty concentrating, hypervigilance, exaggerated startle response, impaired abstract thinking, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran reported living by herself in an apartment for the past year-and-a-half, but stated that she was previously homeless. The examiner diagnosed the Veteran with PTSD and personality disorder, but was unable to differentiate which symptoms were attributable to each diagnosis. The examiner characterized the Veteran’s level of impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. After resolving any doubt in the Veteran’s favor, the Board finds that the Veteran’s overall disability picture more nearly approximated occupational and social impairment with deficiencies in most areas throughout the appeal period. Therefore, an initial rating of 70 percent is granted. The Board finds that a rating in excess of 70 percent is not warranted at any point during the period under review. The record shows that the Veteran reported having at least one close friend and maintaining a good relationship with a few relatives, including her daughter, granddaughter, and a cousin. Throughout the appeal period, she maintained adequate grooming and hygiene, and her speech, behavior, cognition, insight, judgment, thought process, and thought content were not impaired. There was no evidence of delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting herself or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or an inability to perform activities of daily living. In March 2015, the Veteran reported caring for her mother and helping her with activities of daily living. Accordingly, the Board finds that total social and occupational impairment has not been shown, and a rating in excess of 70 percent is denied. 3. Entitlement to TDIU prior to November 19, 2013 VA will grant TDIU when the evidence shows that a veteran is precluded by reason of a service-connected disability or disabilities from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The relevant issue is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether a veteran is currently unemployable. 38 C.F.R. § 4.16(a), 4.19. A total disability rating may be assigned when the schedular rating is less than total, where, if there is only one disability, the disability is rated at 60 percent or more, or where, if there are two or more disabilities, at least one disability is rated 40 percent or more and there is sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). During the period on appeal prior to November 19, 2013, service connection has been in effect for PTSD, now rated as 70 percent disabling, and left sciatica, evaluated as 20 percent disabling. The Veteran’s combined disability rating was 80 percent. Therefore, she met the schedular criteria for TDIU during the period on appeal prior to November 19, 2013. The highest level of education attained by the Veteran is a high school diploma and some college courses. During service, her military occupational specialty was an aircraft electrician systems specialist. After service, she had experience working as a bridge electrician, in collections, as a daycare provider, as a manager for a housecleaning company, and as a receptionist for a Vet Center. The record shows that the Veteran has been unemployed throughout the period under review. Upon review of the record, the Board finds that it is at least as likely as not that the Veteran’s service-connected disabilities rendered her unable to secure or follow a substantially occupation consistent with her education and occupational experience. As previously noted, the clinician who conducted the April 2010 SSA Mental Residual Functional Capacity Assessment indicated that the Veteran’s mental health symptoms markedly limited her ability to maintain concentration, persistence, and pace; perform activities within a schedule; maintain regular attendance; and be punctual within customary tolerances. The Veteran was also found to be markedly limited in her ability to sustain an ordinary routine without special supervision, to complete a normal workday or workweek without interruptions from psychological symptoms, to perform at a consistent pace without an unreasonable number of rest periods, to interact appropriately with the general public, and to respond appropriately to changes in a work setting. The clinician opined that the Veteran was able to maintain attention for two hours at a time, but she would be unable to persist at even simple tasks for an eight-hour period without an inordinate amount of one-to-one support or supervision. The clinician also opined that the Veteran could tolerate the minimal social demands of simple-task settings, but could not tolerate sustained contact with the general public or simple changes in routine without an inordinate amount of one-to-one support or supervision. Additionally, VA treatment records note that prior to November 19, 2013, the Veteran was becoming more disorganized and increasingly somatically focused, made little progress in terms of her housing and finances. Moreover, the May 2013 VA examiner indicated that the Veteran’s mental health symptoms resulted in disturbances of mood or motivation, mild memory loss, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. After resolving any doubt in favor of the Veteran, the Board finds that TDIU is warranted throughout the period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for a disability manifested by visual impairment, other than conversion disorder, is remanded. In a written statement accompanying her April 2014 application for service connection, the Veteran indicated that she was seeking service connection for visual impairment caused by cornea difficulties. As previously noted, the Veteran’s attorney has indicated that the Veteran is seeking service connection for visual impairment caused by conversion disorder, as well as a corneal condition. Although the Veteran has not indicated whether she is claiming that a corneal condition is directly related to service, service treatment records show that the Veteran’s eyes were normal upon her entrance into active duty, and she reported having eye trouble on a July 1979 report of medical history. Post-service treatment records show that the Veteran reported being diagnosed with glaucoma and Chandler’s syndrome in 1995. Accordingly, the Board finds that the Veteran should be provided with a VA examination, and a medical opinion should be obtained. The matters are REMANDED for the following action: 1. Schedule the Veteran with a VA examination pursuant to her claim for service connection for a disability manifested by visual impairment, other than conversion disorder. After an examination and review of the claims file, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that any current disability manifested by vision impairment (other than conversion disorder) was incurred in or caused by service. A complete rationale for all opinions must be provided. The examiner’s opinion should reflect consideration of a July 1979 report of medical history showing that the Veteran reported eye trouble during service and post-service treatment records showing that the Veteran reported being diagnosed with glaucoma and Chandler’s syndrome in 1995. 2. If the claim remains denied, issue a supplemental statement of the case, as appropriate. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Banister, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.