Citation Nr: 21006818 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 19-37 504 DATE: February 5, 2021 ORDER Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD), beginning December 9, 2019, is granted. Entitlement to an award of a total disability rating based on individual unemployability due to service connection disability (TDIU), beginning December 9, 2019, is granted. REMANDED Entitlement to service connection for bilateral peripheral neuropathy is remanded. Entitlement to service connection for residuals from traumatic brain injury (TBI) is remanded. FINDINGS OF FACT 1. Beginning December 9, 2019, the Veteran’s PTSD is most closely manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. The evidence is sufficient to show that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected PTSD. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for PTSD, beginning December 9, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for the award of a TDIU, beginning December 9, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § § 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from December 27, 1965 to August 13, 1968 and is a Veteran of the Vietnam Era. While stationed in the Republic of Vietnam, the Veteran earned numerous awards and citations, including the Combat Infantryman Badge (CIB). This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a November 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which is the agency of original jurisdiction (AOJ). The Veteran filed a timely notice of disagreement (NOD) in which he requested a Board hearing. This request for a Board hearing was later withdrawn in written correspondence received by VA in October 2020. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). 1. Entitlement to a disability rating of 70 percent for posttraumatic stress disorder (PTSD), beginning December 9, 2019, The Veteran seeks a higher disability rating for his PTSD conditions, currently rated at a 30 percent disabling, beginning October 19, 2011. The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in the condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will also consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Id. The Veteran’s service-connected PTSD is evaluated under the criteria of DC 9411 which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned 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, 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 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. Id. A 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; 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); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where there is 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising 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(b). In evaluating the level of disability, it is also necessary to evaluate such from the point of view of a Veteran working or seeking work. 38 C.F.R. § 4.2. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts of events that the lay witness observed or experienced, and which are within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159 (a). However, a lay witness is not competent to establish facts or opinions which require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 470 (1994). As is relevant to this case, a Veteran is not competent to either diagnose or make a nexus opinion in psychiatric issues. Young v. McDonald, 766 F.3d 1348, 1353 (Fed. Cir. 2014) (holding that “PTSD is not the type of medical condition that lay evidence... is competent and sufficient to identify”). Therefore, “VA must consider lay evidence but may give it whatever weight it concludes the evidence is entitled to.” Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Relevant Evidence of Record The Board has reviewed all of the evidence in the record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as to the issues in the claim and this appeal. The Veteran engaged in psychological treatment at the VA Nassau Vet Center, which submitted a summary of his symptoms, dated August 2014. The Veteran was noted to have started treatment there in April 2014, with weekly individual therapy. During these sessions the Veteran’s mood ranged from neutral to depressed to angry, and his affect was congruent to his mood. He continued to suffer from intrusive and disturbing images, flashbacks, intense anger, and some sleep disturbance. He complained of being easily angered, feeling hypersensitive towards people who do not follow structure. At this time the Veteran was still working as a consultant in safe sales, which he did for many years, which required consistency and structure as well as a pressure to perform to a high standard. He suffered from hyper-vigilance and exaggerated startle response triggered by smells and sound such as fireworks, rain, and sudden noises. The Veteran stated these symptoms began as soon as he returned from Vietnam and have intensified since. A September 2015 VA PTSD individual therapy note from the then Director of the VAMC Northport PTSD program, notes comments that the Veteran has severe PTSD symptoms daily with hypervigilance, survivor’s guilt, hyperarousal, avoidance, isolation, anger, sleep issues, intrusive thoughts and nightmares, interpersonal issues and that his combat trauma is the most severe the Director had seen since becoming Director of the PTSD program. The Veteran was afforded a new VA psychological examination in November 2015. The Veteran initially appeared angry at the VA, but did report that he and his wife were still married after 45 years, with the marriage described as good and that he has a close relationship with both of his children, both of whom live in different states and who his wife and he regularly visit. He described having numerous friends many of whom he helps with their businesses. He acknowledged that he then took care of all activities of daily living (ADLs) without difficulty. Occupationally, the Veteran stated that he was not at that time working for the last 3 years, but would be happy to go back to work, and is actively looking for work. He stated his belief that his last company, which was consulting for the sale and installation of safes, including for banks, and that the business declined and eventually closed due to the rise of online banking and that the loss of his business was not due to any of his mental disabilities. The Veteran was diagnosed with PTSD under the DSM-5 criteria due to his having directly experiencing and witnessing, in person, traumatic events in service; with recurrent, involuntary, and intrusive distressing memories of and dreams related to the traumatic events; avoidance of, or efforts to avoid external reminders, that arouse distressing memories, thoughts, or feelings about or closely associated with the traumatic events; experiencing persistent distorted cognitions about the cause or consequences of the traumatic events that lead to the Veteran to blame himself or others and persistent negative emotional state of fear, anger and guilt; showing marked alterations in arousal and reactivity associated with the traumatic events including hypervigilance and sleep disturbances; all of which have exhibited for more than 1 month, are not attributable the effects of a substance or other medical condition, and have caused clinically significant distress and impairment in social, occupational, and other functional areas. The Veteran was noted to exhibit anxiety, suspiciousness, and chronic sleep impairment. In the examiner’s final notes, he indicated that the Veteran’s recurrent dreams occurred at every few months, that the Veteran stated some symptoms to be that he sometimes gets things wrong, and that the Veteran indicated the PTSD criteria stated to be missing in the previous VA psychological evaluation to be present “sometimes.” The VA examiner’s overall evaluation of the Veteran’s level of severity due to his PTSD symptoms to be occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. In the report of the Veteran’s December 2019 VA psychological evaluation the examiner noted the Veteran had diagnoses of PTSD and general anxiety disorder (GAD), as well as dementia and primary progressive aphasia. The examiner further opined that these diagnoses are not independent of each other and result from the same etiology with the GAD being a progression from the PTSD; and secondary to the negative impact the PTSD exerts on the Veteran’s life quality and functioning. Facts elicited which relate to the Veteran’s occupational and social history and current symptoms include that he and his wife have been married for 49 years at that time and that he was still retired. PTSD symptoms included anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of long and short term memory, loss of memory loss for names of close relatives or his own name, flattened effect, circumstantial speech, intermittently illogical speech, difficulty understanding complex commands, impaired judgment, impaired abstract judgment and abstract thinking with gross impairment in thought process and communication, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, spatial distortion, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, and disorientation as to time and place. The VA examiner opined that the Veteran’s newly diagnosed GAD contributed significantly to his dysfunction although his major neurocognitive disorder was disabling to the point of making the Veteran certainly unemployable. The VA examiner provided an additional opinion that his GAD is a progression from the PTSD; it is secondary to the negative impact the PTSD exerts on the Vet’s life quality and functioning. The VA examiner’s overall assessment of the impact of Veteran’s PTSD is total occupational and social impairment. A December 2019 VA medical opinion stated that the Veteran’s memory loss was less likely than so due to or the result of the Veteran’s service connected PTSD, and even though the stated major neurocognitive disorder was likely due to aging and genetic factors, his psychiatric stress may have quickened the dementia process. Conversely, another VA medical opinion from December 2019 was that the Veteran’s insomnia was at least as likely as not due to or the result of his PTSD. Analysis Based on the record before it, the Board finds that the Veteran is entitled to an increased disability rating of 70 percent disabling, beginning December 9, 2019, but no earlier, due to the severity, frequency, and duration of his PTSD and related symptoms being most closely indicative of occupational and social impairment with deficiencies in most areas. See 38 C.F.R. § 4.130, DC 9411. In the December 2019 VA psychological evaluation of the Veteran, the VA examiner opines that the Veteran suffers from total occupational and social impairment due to the impact of his PTSD. The VA examiner bases this, at least in part, on the Veteran’s overall significant cognitive decline. However, other medical professionals prior to this time have not affirmatively associated the Veteran’s overall cognitive decline as being attributable to this PTSD, but instead being part of his ageing process. Further, the Veteran has and still maintains very healthy social functioning and strong supportive relationships. This includes his wife of now over 50 years, his adult children, as well as friends and business contacts with whom there is scant evidence of actual problems due to his PTSD symptoms. The frequency, duration, and severity of his symptoms during this period more closely equate is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, which is the criteria for a 70 percent disability rating. The Board does not find that he suffers from total impairment in both occupational and social impairment. The Veteran is not entitled to a higher 100 percent rating as he has not exhibited total occupational and social impairment, as described above. This Veteran’s work history is undisputed in that his business suffered from industry factors, i.e., on-line bank and the reduced need for brick and mortar banks to acquire new physical safes, which the Veteran himself also confirmed. Until this most recent VA examination, the Veteran indicated his willingness and desire to return to work, including that this would give him additional and desired structure and purpose. He has also shown a consistently ability to maintain close and strong relationships with others, family members, and friends and business contacts throughout the appeal. While the Veteran clearly shows significant cognitive impairment, which contributes to increased occupational impairment, he has not shown significant social impairment. The evidence also does not show that the Veteran is entitled to a disability rating higher than 30 percent prior to December 9, 2019. First, the Veteran has shown a strong ability to maintain his personal and social relationships with not only his own family, but with friends and business contacts, who seemed to have sought out his services and advice during the period prior to December 9, 2019. The fact that business contacts sought his advice related to security issues, such as the development and physical placement of bank safe equipment, indicates that the Veteran must have maintained considerable cognitive and occupational abilities, though limited in other ways. The Board finds that the evidence of record prior to the December 9, 2019 VA psychological evaluation does not support a level of severity of the Veteran's PTSD symptoms to warrant a higher disability rating. The evidence and symptoms relied upon by the VA examiners and RO evaluators, does justify the finding of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks,, but not a more severe limitation of his abilities due to his symptoms. The Veteran’s strong social abilities as well as his strong occupational capabilities throughout this period preclude a finding for a higher disability rating level which requires occupational and social impairment with reduced reliability and productivity due to his symptoms. In reaching these conclusions, the Board has considered and applied the benefit of the doubt doctrine where the evidence indicated this was appropriate. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Accordingly, the Board grants the Veteran’s claim for a higher disability rating for PTSD, awarding a 70 percent disabling rating, but no higher, beginning December 9, 2019, but no earlier. 2. Entitlement to an award of a total disability rating based on individual unemployability due to service connection disability (TDIU), beginning December 9, 2019. Although the Veteran has not filed a written claim for TDIU, it was reasonably raised in the evidence of record. A claim for an increased evaluation includes a claim for TDIU where there are allegations of worsening disability and unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is unable, by reason of their service-connected disability or disabilities, to secure or follow a substantially gainful occupation consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. After review of the applicable record, and based on the evidence and analysis stated above, the Board finds that the Veteran is entitled to a finding of TDIU due to his worsening PTSD symptoms and their impact on his ability to obtain and maintain substantially gainful employment. Based on the evidence of record, in particular the December 2019 VA psychological evaluation, the Veteran is found to be unable to obtain or maintain gainful employment due to his PTSD symptoms and their impact on his deteriorating cognitive functioning, the Board finds that the Veteran is entitled to this TDIU, beginning December 9, 2019. However, VA psychological evaluations prior to this date did not record the level of severity of his PTSD symptoms to warrant a TDIU. Entitlement to TDIU beginning December 9, 2019, due to PTSD is granted. REASONS FOR REMAND 1. Entitlement to service connection for bilateral peripheral neuropathy is remanded. In his initial August 2015 claim for peripheral neuropathy, the Veteran claimed his disability as “peripheral neuropathy (Vietnam).” Notably, the Veteran does not specifically state this condition to be secondary to herbicide while he served in the Republic of Vietnam. However, the RO denied the claim solely on the basis that it believed the Veteran’s condition was not granted a presumption for herbicide exposure as his condition was not early onset peripheral neuropathy. Peripheral neuropathy is one of only a few medical conditions which have a limited prescribed period for the condition to manifest before the presumption attaches. See 38 C.F.R. §§ 3.307, 3.309. None of the RO’s decisions addressed the Veteran's claim on a direct service connection basis. The Veteran later amended his claim to actually include his exposure to herbicide agents as a possible cause for his condition. VA concedes that the Veteran was, at least presumptively, exposed to herbicide agents during his service in the Republic of Vietnam The Veteran’s military service treatment records (STRs) do contain several references to leg/lower extremity complaints of injury, including a February 7, 1967 x-ray report for his lower back which was ordered due to the Veteran experiencing “sciatic pain since hard parachute landing 5 days prior.” Additionally, during treatment for and examination related to his imbalance, dizziness, and ear injuries, which have been stated to be due to peripheral neuropathy, the Veteran stated on several occasions that he began experiencing these imbalance problems at and immediately after his discharge from service. The Board also notes that it does not appear that the Veteran was afforded a VA examining for this condition. Given the Veteran’s service history and the evidence identified above, the Board finds that an examination is warranted for the VA to comply with is duty to assist the Veteran. As such, the Board remands the matter for further development to obtain a medical opinion as to whether the Veteran was injured while in service which caused his peripheral neuropathy, or other appropriate diagnosis for his condition, on a direct basis. Also, the Board requests an addendum medical opinion as to whether the Veteran's bilateral peripheral neuropathy is entitled to presumptive service connection due to herbicide exposure, which takes into account the Veteran’s statements that his imbalance issues, stated to be due to peripheral neuropathy, began at the time of his separation from service. The claim is remanded for further development to obtain new medical opinions which address the evidence identified above, and as they relate to the different theories of entitlement. The matters are REMANDED for the following action: 1. Obtain a medical opinion as to whether the Veteran’s bilateral lower extremity peripheral neuropathy is caused by or related to his military service. Additional personal examination of the Veteran and/or additional tests are requested only if indicated by the examiner(s). The examiner(s) must review the claims file as part of authoring the requested addendum opinions. The examiner(s) is asked to render opinions for the following: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral lower extremity peripheral neuropathy began in service, or is otherwise the result of a disease or injury suffered in service, including as related to injuries sustained from activities related to parachute/ airborne training or operations, which are recorded in his STRs? The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral lower extremity peripheral neuropathy is caused by his exposure to herbicide agents, including but not limited to Agent Orange. The Veteran’s presumptive exposure to herbicide agents while he served in the Republic of Vietnam is conceded. The examiner is asked to specifically address the Veteran’s claims that he began to experience symptoms related to imbalance and peripheral neuropathy at and immediately after his discharge from the service. (c.) For each of the above requested opinions, the examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Bannach, 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.