Citation Nr: 21003091 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-02 149 DATE: January 19, 2021 ORDER Entitlement to service connection for dyshidrotic eczema, including of the hands, is granted. Entitlement to increases in the “staged” ratings for posttraumatic stress disorder (PTSD), however, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded.   FINDINGS OF FACT 1. It is just as likely as not the dyshidrotic eczema now being claimed is related to the skin rashes the Veteran previously had while in service. 2. Prior to November 30, 2017, his PTSD did not cause more than occupational and social impairment due to just mild or transient symptoms. From November 30, 2017 to March 6, 2019, his PTSD did not cause more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. From March 7, 2019 to November 8, 2020, his PTSD did not cause more than occupational and social impairment with reduced reliability and productivity. And, since November 9, 2020, his PTSD has not caused more than occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to service connection for his dyshidrotic eczema. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 2. But the criteria conversely are not met for higher ratings for his PTSD – meaning higher than 10 percent prior to November 30, 2017, higher than 30 percent from November 30, 2017 to March 6, 2019, higher than 50 percent from March 7, 2019 to November 8, 2020, and higher than 70 percent since. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC/Code) 9411 (2018).   REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1967 to August 1968. This appeal to the Board of Veterans’ Appeals (Board) is from a December 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which, in relevant part, granted service connection and an initial 10 percent rating for the Veteran’s PTSD. He appealed for a higher initial rating. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating, in this circumstance, VA adjudicators must consider whether to “stage” the rating, meaning assign different ratings since the effective date of the award if there have been occasions when the disability has been more severe than at others). In support of these claims, the Veteran testified at a videoconference hearing in January 2019 before the undersigned Veterans Law Judge (VLJ) of the Board. A transcript of the hearing is of record. In June 2019, the Board remanded these claims back to the RO, i.e., back to the Agency of Original Jurisdiction (AOJ) for further development and consideration, and the rating for the PTSD since has been “staged” because a more recent November 2020 rating decision on remand, so during the pendency of this appeal, in part, increased the rating for the PTSD to 30 percent as of November 30, 2017, to 50 percent as of March 7, 2019, and to 70 percent as of November 9, 2020. Therefore, this appeal now partly concerns whether an initial rating higher than 10 percent was warranted for the PTSD prior to November 30, 2017 (i.e., from August 13, 2012 to November 29, 2017), whether a rating higher than 30 percent was warranted from November 30, 2017 to March 6, 2019, whether a rating higher than 50 percent was warranted from March 7, 2019 to November 8, 2020, and whether a rating higher than 70 percent has been warranted since November 9, 2020. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). 1. Entitlement to service connection for dyshidrotic eczema, including of the hands Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 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 relevant disease or an injury; and (3) a causal relationship (“nexus”) between the present disability and the disease or injury incurred or aggravated during service. See Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection also may be established on a secondary basis for disability that is proximately due to, or the result of, or being aggravated by a service-connected disability. Establishing secondary service connection requires evidence of: (1) a current disability (for which secondary service connection is sought); (2) an already service-connected disability; and (3) indication the current disability was either (a) caused or (b) is being aggravated by the service-connected disability. See 38 C.F.R. § 3.310(a) and (b); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Board must fully consider the lay evidence of record. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). A layperson is competent to report on the onset of disability and, when applicable, continuity of his or her current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (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. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his eczema began while in service and has persisted during the many years since. His service treatment records (STRs) confirm he had a skin rash in service, beginning in April 1968. More recent medical records, including current, show he now suffers from dyshidrotic eczema of his hands. The question, therefore, is whether that skin rash in service is related to or was earlier indication of the dyshidrotic eczema that since has been diagnosed, instead, in the years since his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993). The Board remanded this claim in June 2019 to obtain additional medical comment concerning the origins of the Veteran’s skin disorder, particularly in terms of whether related or attributable to his military service. To this end, the Veteran had an additional VA compensation examination in November 2020. The examiner observed marked scaling, erythema, and subepidermal vesiculation of the Veteran’s palms. The Veteran reported using oral prednisone, steroid cream, and Lidex to treat his condition. The examiner diagnosed dyshidrotic eczema, including of the hands, and indicated the current eczema is at least as likely as not related to the Veteran’s service because of his reported continuity of symptoms since service as well as his reported exposure to herbicide agents and other chemicals while in service. Certainly then, it is as likely as not, if indeed not more likely than not, there is this required correlation between the Veteran’s dyshidrotic eczema and his service, so his appeal of this claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to increases in the “staged” ratings for the PTSD Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994), citing 38 C.F.R. § 4.14. The Veteran’s PTSD is rated under 38 C.F.R. § 4.130, DC 9411, of the General Rating Formula for Mental Disorders. DC 9411 provides for a 30 percent rating when there is 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.   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 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. 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; 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; memory loss for names of close relatives, own occupation, or own name. The use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms listed after that phrase are not intended to constitute an exhaustive list, but rather are to serve as mere examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment). In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held 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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. When evaluating the level of disability of a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130. The Veteran initially underwent a VA compensation examination for his PTSD in November 2012. He reported hypervigilance, exaggerated startle response, and avoidance of activities that reminded him of his trauma. However, he reported good relationships with his significant other and their children. He reported working as a cross country truck driver for the past 13 years. He reported training other drivers and receiving several awards for his training and driving. He also reported almost losing his job, but just once, due to a flashback relating to a military experience. He indicated that he had been sober for 30 years and denied drug use. The examiner diagnosed PTSD and indicated it caused what amounted to occupational and social impairment due to mild or transient symptoms. That assessment is commensurate with the 10 percent rating the RO initially assigned for the Veteran’s PTSD. As already alluded to, the rating for this disability since has been “staged” to higher levels based on progressive worsening of the PTSD, first to 30-percent disabling, then to 50-percent disabling, and most recently to 70-percent disabling. The results of the Veteran’s November 2020 VA compensation examination, on remand, support the “staging” of the rating for the PTSD in those increments and as of the corresponding effective dates. During this more recent mental status evaluation, the Veteran reported currently residing with his adult daughter and her family. He reported not participating in social activities due to his anxiety and anhedonia. He reported planning to move to Northern Ireland to live with his wife later in the month. He reported retiring in 2019 after requiring surgery for a blockage in his neck. His symptoms were depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation or mood, difficulty in establishing and maintaining relationships, difficulty in adapting to stress, obsessional rituals, and neglect of personal appearance and hygiene. The examiner diagnosed PTSD and indicated it caused occupational and social impairment with reduced reliability and productivity. The results of those examinations – and the other evidence in the file, do not show that further “staging” or different increases in the ratings for the Veteran’s PTSD are warranted. In sum, prior to November 30, 2017, he did not have more than occupational and social impairment due to just relatively mild or transient symptoms. From November 30, 2017 to March 6, 2019, he did not have more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. From March 7, 2019 to November 8, 2020 he did not have more than occupational and social impairment with reduced reliability and productivity. And, since November 9, 2020, he has not had more than occupational and social impairment with deficiencies in most areas. He never has had total occupational and social impairment, which as mentioned is required for an even greater 100 percent rating. Accordingly, the appeal of this claim is denied.   REASONS FOR REMAND Entitlement to a TDIU is remanded. As already mentioned, the Veteran indicated during his more recent November 2020 VA examination that he had retired from his job as a cross country truck driver the prior year, so in 2019, because of neck surgery he underwent for a blockage. It does not appear that surgery was for any of his service-connected disabilities – which, aside from his PTSD, are Type II Diabetes Mellitus, the diabetic complications of erectile dysfunction (ED) and an eye condition, and now also his dyshidrotic eczema. More development nonetheless is needed regarding the circumstances surrounding the Veteran’s retirement. Additionally, the record on appeal indicates he is receiving Social Security Disability Insurance (SSDI) benefits. His records from the Social Security Administration (SSA) are not presently in his VA file and are potentially relevant to determining whether he is entitled to a TDIU – meaning incapable of returning to the workforce in any substantially gainful capacity. Thus, these SSA records should be obtained. See Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Accordingly, this claim is REMANDED for the following action: 1. Obtain all needed additional information concerning the Veteran’s retirement in 2019, including more explanation of why he retired, income verification, and information from his prior employer. Document all attempts to obtain this additional information in the claims file, and appropriately notify the Veteran and his attorney if additional records identified are not obtained, provided there is sufficient provision of the information needed to obtain these additional records.   2. Obtain the Veteran’s complete SSA records, including the determination on his claim and all evidence considered in that determination. If these other records are unavailable, the reason for their unavailability must be noted in the file and the Veteran and his attorney appropriately notified. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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. Department of Veterans Affairs YOUR RIGHTS TO APPEAL OUR DECISION The attached decision by the Board of Veterans' Appeals (Board) is the final decision for all issues addressed in the "Order" section of the decision. The Board may also choose to remand an issue or issues to the local VA office for additional development. If the Board did this in your case, then a "Remand" section follows the "Order." However, you cannot appeal an issue remanded to the local VA office because a remand is not a final decision. The advice below on how to appeal a claim applies only to issues that were allowed, denied, or dismissed in the “Order.” If you are satisfied with the outcome of your appeal, you do not need to do anything. Your local VA office will implement the Board’s decision. However, if you are not satisfied with the Board's decision on any or all of the issues allowed, denied, or dismissed, you have the following options, which are listed in no particular order of importance: • Appeal to the United States Court of Appeals for Veterans Claims (Court) • File with the Board a motion for reconsideration of this decision • File with the Board a motion to vacate this decision • File with the Board a motion for revision of this decision based on clear and unmistakable error. Although it would not affect this BVA decision, you may choose to also: • Reopen your claim at the local VA office by submitting new and material evidence. There is no time limit for filing a motion for reconsideration, a motion to vacate, or a motion for revision based on clear and unmistakable error with the Board, or a claim to reopen at the local VA office. Please note that if you file a Notice of Appeal with the Court and a motion with the Board at the same time, this may delay your appeal at the Court because of jurisdictional conflicts. If you file a Notice of Appeal with the Court before you file a motion with the Board, the Board will not be able to consider your motion without the Court's permission or until your appeal at the Court is resolved. How long do I have to start my appeal to the court? You have 120 days from the date this decision was mailed to you (as shown on the first page of this decision) to file a Notice of Appeal with the Court. If you also want to file a motion for reconsideration or a motion to vacate, you will still have time to appeal to the court. As long as you file your motion(s) with the Board within 120 days of the date this decision was mailed to you, you will have another 120 days from the date the Board decides the motion for reconsideration or the motion to vacate to appeal to the Court. You should know that even if you have a representative, as discussed below, it is your responsibility to make sure that your appeal to the Court is filed on time. Please note that the 120-day time limit to file a Notice of Appeal with the Court does not include a period of active duty. If your active military service materially affects your ability to file a Notice of Appeal (e.g., due to a combat deployment), you may also be entitled to an additional 90 days after active duty service terminates before the 120-day appeal period (or remainder of the appeal period) begins to run. How do I appeal to the United States Court of Appeals for Veterans Claims? Send your Notice of Appeal to the Court at: Clerk, U.S. Court of Appeals for Veterans Claims 625 Indiana Avenue, NW, Suite 900 Washington, DC 20004-2950 You can get information about the Notice of Appeal, the procedure for filing a Notice of Appeal, the filing fee (or a motion to waive the filing fee if payment would cause financial hardship), and other matters covered by the Court's rules directly from the Court. You can also get this information from the Court's website on the Internet at: http://www.uscourts.cavc.gov, and you can download forms directly from that website. The Court's facsimile number is (202) 501-5848. To ensure full protection of your right of appeal to the Court, you must file your Notice of Appeal with the Court, not with the Board, or any other VA office. How do I file a motion for reconsideration? You can file a motion asking the Board to reconsider any part of this decision by writing a letter to the Board clearly explaining why you believe that the Board committed an obvious error of fact or law, or stating that new and material military service records have been discovered that apply to your appeal. It is important that your letter be as specific as possible. A general statement of dissatisfaction with the Board decision or some other aspect of the VA claims adjudication process will not suffice. If the Board has decided more than one issue, be sure to tell us which issue(s) you want reconsidered. Issues not clearly identified will not be considered. Send your letter to: Litigation Support Branch Board of Veterans' Appeals P.O. Box 27063 Washington, DC 20038 VA FORM DEC 2016 4597 Page 1 CONTINUED ON NEXT PAGE Remember, the Board places no time limit on filing a motion for reconsideration, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to vacate? You can file a motion asking the Board to vacate any part of this decision by writing a letter to the Board stating why you believe you were denied due process of law during your appeal. See 38 C.F.R. 20.904. For example, you were denied your right to representation through action or inaction by VA personnel, you were not provided a Statement of the Case or Supplemental Statement of the Case, or you did not get a personal hearing that you requested. You can also file a motion to vacate any part of this decision on the basis that the Board allowed benefits based on false or fraudulent evidence. Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. Remember, the Board places no time limit on filing a motion to vacate, and you can do this at any time. However, if you also plan to appeal this decision to the Court, you must file your motion within 120 days from the date of this decision. How do I file a motion to revise the Board's decision on the basis of clear and unmistakable error? You can file a motion asking that the Board revise this decision if you believe that the decision is based on "clear and unmistakable error" (CUE). Send this motion to the address on the previous page for the Litigation Support Branch, at the Board. You should be careful when preparing such a motion because it must meet specific requirements, and the Board will not review a final decision on this basis more than once. You should carefully review the Board's Rules of Practice on CUE, 38 C.F.R. 20.1400-20.1411, and seek help from a qualified representative before filing such a motion. See discussion on representation below. Remember, the Board places no time limit on filing a CUE review motion, and you can do this at any time. How do I reopen my claim? You can ask your local VA office to reopen your claim by simply sending them a statement indicating that you want to reopen your claim. However, to be successful in reopening your claim, you must submit new and material evidence to that office. See 38 C.F.R. 3.156(a). Can someone represent me in my appeal? Yes. You can always represent yourself in any claim before VA, including the Board, but you can also appoint someone to represent you. An accredited representative of a recognized service organization may represent you free of charge. VA approves these organizations to help veterans, service members, and dependents prepare their claims and present them to VA. An accredited representative works for the service organization and knows how to prepare and present claims. You can find a listing of these organizations on the Internet at: http://www.va.gov/vso/. You can also choose to be represented by a private attorney or by an "agent." (An agent is a person who is not a lawyer, but is specially accredited by VA.) If you want someone to represent you before the Court, rather than before the VA, you can get information on how to do so at the Court’s website at: http://www.uscourts.cavc.gov. The Court’s website provides a state-by-state listing of persons admitted to practice before the Court who have indicated their availability to the represent appellants. You may also request this information by writing directly to the Court. Information about free representation through the Veterans Consortium Pro Bono Program is also available at the Court’s website, or at: http://www.vetsprobono.org, mail@vetsprobono.org, or (855) 446-9678. Do I have to pay an attorney or agent to represent me? An attorney or agent may charge a fee to represent you after a notice of disagreement has been filed with respect to your case, provided that the notice of disagreement was filed on or after June 20, 2007. See 38 U.S.C. 5904; 38 C.F.R. 14.636. If the notice of disagreement was filed before June 20, 2007, an attorney or accredited agent may charge fees for services, but only after the Board first issues a final decision in the case, and only if the agent or attorney is hired within one year of the Board’s decision. See 38 C.F.R. 14.636(c)(2). The notice of disagreement limitation does not apply to fees charged, allowed, or paid for services provided with respect to proceedings before a court. VA cannot pay the fees of your attorney or agent, with the exception of payment of fees out of past-due benefits awarded to you on the basis of your claim when provided for in a fee agreement. Fee for VA home and small business loan cases: An attorney or agent may charge you a reasonable fee for services involving a VA home loan or small business loan. See 38 U.S.C. 5904; 38 C.F.R. 14.636(d). Filing of Fee Agreements: If you hire an attorney or agent to represent you, a copy of any fee agreement must be sent to VA. The fee agreement must clearly specify if VA is to pay the attorney or agent directly out of past-due benefits. See 38 C.F.R. 14.636(g)(2). If the fee agreement provides for the direct payment of fees out of past-due benefits, a copy of the direct-pay fee agreement must be filed with the agency of original jurisdiction within 30 days of its execution. A copy of any fee agreement that is not a direct-pay fee agreement must be filed with the Office of the General Counsel within 30 days of its execution by mailing the copy to the following address: Office of the General Counsel (022D), Department of Veterans Affairs, 810 Vermont Avenue, NW, Washington, DC 20420. See 38 C.F.R. 14.636(g)(3). The Office of the General Counsel may decide, on its own, to review a fee agreement or expenses charged by your agent or attorney for reasonableness. You can also file a motion requesting such review to the address above for the Office of the General Counsel. See 38 C.F.R. 14.636(i); 14.637(d). VA FORM DEC 2016 4597 Page 2 SUPERSEDES VA FORM 4597, APR 2015, WHICH WILL NOT BE USED