Citation Nr: 20053217 Decision Date: 08/11/20 Archive Date: 08/11/20 DOCKET NO. 17-01 023 DATE: August 11, 2020 ORDER Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder (PTSD) is denied. Entitlement to service connection for essential tremors, claimed as neurological issues, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s PTSD does not more closely approximate occupational and social impairment with deficiencies in most areas. 2. It is as least as likely as not that the Veteran’s essential tremors are related to, or were incurred in, his military service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for PTSD are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to service connection for essential tremors have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps (USMC) from October 1993 to January 2000, from January 2004 to November 2004, and from October 2010 and November 2011. This appeal comes to the Board of Veterans’ Appeals (Board) from a Department of Veterans Affairs (VA) January 2016 rating decision of the Agency of Original Jurisdiction (AOJ). In March 2020 the Veteran appeared before the undersigned Veterans Law Judge at a Board hearing. A transcript of that hearing has been reviewed by the Board, and has been associated with the claims file. At his March 2020 Board hearing the Veteran testified that he was unable to maintain substantially gainful employment due to his service-connected disabilities. Thus, while the issue of entitlement to a TDIU was not appealed to the Board, it has been raised by the record as part of the Veteran’s increased rating claim for PTSD. Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to a disability rating in excess of 50 percent for service-connected posttraumatic stress disorder The Veteran contends that his service-connected PTSD warrants a disability rating in excess of 50 percent. Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Veteran’s PTSD is rated under Diagnostic Code (DC) 9411, 38 C.F.R. § 4.130. Under DC 9411, the following applies: A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 rating is warranted when 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; 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); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. In December 2015 the Veteran was afforded a VA examination to determine the etiology and severity of his PTSD. The examiner found that the Veteran experienced occupational and social impairment with occasional decrease in work efficiency, although the Veteran was “generally functioning satisfactorily.” However, the Veteran’s PTSD, along with his right-hand tremor, caused him to turn down a recommission with the USMC. The Veteran “dislikes” crowds, but denied any significant problems with them, and in fact “enjoys going out in [the] community.” Despite being “easily irritable in public,” the Veteran maintained “a circle of friends, has good relations with his parents and cordial relations with his in-laws.” The Veteran described his marriage as “happy,” however, his psychological condition did “impact the relationship.” The Veteran, at the time, was a supervisor at an industrial plant. He noted that he was “probably going to have to quit” because he “can’t handle stress” as he had in the past. According to the Veteran, working had “become overwhelming.” Overall, the examiner found that the Veteran had a depressed mood, experienced anxiety, panic attacks more than once a week, sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances. In February 2020 the Veteran was seen for another VA examination to ascertain the extent of his PTSD. The Veteran reported that the majority of his symptoms were “about the same” as they were in December 2015, with only his anxiety being “more prevalent.” The Veteran stated that he was “not handling stress very well” at his job, and that his poor concentration and memory was due to his “reduced ability to manage and organize multiple things.” The Veteran still reported being “emotionally close” to his wife and that they had “a sustained supportive relationship.” He and his wife would “frequent[ly]” go on dates “at minimum 1x week.” The Veteran was “active in his college fraternity as a graduate alumni[sic]” and “attends bible study 1x a week.” The examiner found that the Veteran experienced a depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, circumstantial/circumlocutory/stereotyped speech, and disturbances of motivation. Overall, the Veteran has occupational and social impairment with reduced reliability and productivity. At his March 2020 Board hearing the Veteran testified that he had begun “one-on-one” therapy to treat his PTSD. According to the Veteran, his church “plays a big part” in his life, and it had “been a good resource” for him. He was “not totally isolating” himself due to his PTSD, and he had been “reaching out to people” where he could. While the Veteran “can’t stand” crowds, he enjoyed having “a few friends around.” The Board finds that the Veteran’s PTSD warrants a 50 percent disability rating. This is because that, while the Veteran does experiences difficulty adapting to stressful circumstances such as work or worklike settings, near-continuous panic attacks, memory impairment, flattened affect, circumstantial, circumlocutory, or stereotyped speech, disturbances of motivation and mood, and difficulty focusing and following complex commands, the Veteran is also able to establish and maintain healthy social relationships. A 70 percent disability rating is not warranted as the Veteran does not display an inability to establish and maintain effective relationships, does not display suicidal or homicidal ideation, does not have obsessional rituals which interfere with routine activities, is capable of functioning independently, does not have impaired impulse control, and generally does not have occupational and social impairment with deficiencies in most areas. Therefore, the Veteran’s claim for a rating in excess of 50 percent for his service-connected PTSD is denied. 2. Entitlement to service connection for essential tremors, claimed as neurological issues The Veteran contends that his right-hand neurological issues are due to his military service. Service connection generally requires (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a causal relationship, or nexus, between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury; or, for any increase in the severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progression of the nonservice-connected disease. 38 C.F.R. § 3.310 (a)-(b); Allen v. Brown, 7 Vet. App. 439 (1995). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition, (e.g., a broken leg, separated shoulder, pes planus (flat feet), varicose veins, tinnitus (ringing in the ears), etc.), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After careful consideration of all evidence available in a given case, any reasonable doubt, meaning a point where there is an approximate balance of positive and negative evidence regarding any issue material to the determination, VA will resolve that doubt in the Veteran’s favor. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran has been diagnosed with essential tremors, though the Board notes that Parkinson’s disease has not been definitively ruled out. Regardless, the Veteran has a currently diagnosed disability, and therefore the first Shedden element necessary to establish service connection has been met. At his March 2020 Board hearing the Veteran testified that his tremor started after his first deployment to Southwest Asia in 2004. In April 2017 a VA physician stated that there is “abundant evidence” that the Veteran’s neurological issues were “proximate” to his deployments to Southwest Asia. Also in April 2017, the Veteran submitted three lay statements from associates from his time in the USMC, and all three statements corroborate the Veteran’s timeline of events. As the Veteran is competent to provide evidence regarding the onset of symptoms, the Board finds that the evidence of record establishes the onset of the Veteran’s condition to be while he was on active duty. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). What is left for the Board to determine is whether there is a connection, or nexus, between the Veteran’s current disability and any in-service injury, accident, or manifestation of a condition. In May 2016 the Veteran was seen by a VA examiner to determine if his neurological issues were the result of a traumatic brain injury (TBI). While the examiner was able to rule out any TBI causing the tremor, the examiner did find that the “record is supporting of the essential tremor having onset in service.” In April 2017 the Veteran was afforded another VA examination regarding his tremors. The examiner found that the tremors were “at least as likely as not” incurred in or caused by the Veteran’s military service. The examiner based his opinion on the fact that there was “abundant evidence placing development of tremor/gait issues proximate to Veteran’s Gulf War time of service.” The examiner concluded that it was “abundantly clear” that the “neurologic issue of record” was associated with the Veteran’s military service. Finally, in May 2020 the Veteran submitted a statement from Dr. M., a non-VA physician who has been treating the Veteran. According to Dr. M., the Veteran’s chronic tremor developed “since coming home from his tours of duty.” The Veteran’s tremors “should be considered a service-related disability. While not impossible, I think that it is quite unlikely that [the Veteran] would be in his current condition, with these tremors” if it was not for his “service in the Marine Corps.” Dr. M. based his conclusion on a review of the Veteran’s medical records, as well as studies from the National Institute of Neurologic Disorders and Stroke. The Board finds that the preponderance of evidence, including the Veteran’s lay statements, the findings of multiple VA examiners, and Dr. M.’s medical opinion, establishes that it is as least as likely as not that the Veteran’s essential tremors are due, or were incurred in, his active duty military service. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for tremors is warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran’s claim for entitlement to service connection for essential tremors, claimed as neurological issues, is granted. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The Veteran contends that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. The Board notes that presently, the Veteran only has one service-connected disability that has been rated – his PTSD being rated at 50 percent disabling. This alone does not meet the schedular requirements for a TDIU. However, the Board has granted the Veteran’s claim for service connection for his essential tremors, and it is possible the Veteran shall be awarded a disability rating such that he will then meet the schedular requirements for a TDIU. Therefore, the Board finds that the issue of the Veteran’s claim for TDIU is inextricably intertwined with the adjudication of his claim for service connection for his essential tremors. Harris v. Derwinski, 1 Vet. App. 180 (1991) (holding two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). The matters are REMANDED for the following action: 1. Once the AOJ has effectuated/formalized the Board’s grant of service connection for essential tremors, claimed as a neurological condition, pursuant to the Board decision this date and in a manner that is consistent with the Board’s above decision, the AOJ shall take all appropriate action to develop and adjudicate the Veteran’s claim for a TDIU to include: notifying the Veteran of the requirements of filing a TDIU claim and requesting that he complete a VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) claim form so that he can provide information concerning his employment, education, training, and other relevant factors. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Neville, Associate 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.