Citation Nr: 21011262 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-35 702 DATE: March 1, 2021 ORDER Entitlement to an initial 50 percent disability rating for posttraumatic stress disorder (PTSD) prior to April 12, 2017, is granted. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus is denied. REMANDED Entitlement to service connection for a lumbar spine disorder, including degenerative disc disease, is remanded. Entitlement to service connection for a neurological disorder of the left lower extremity, including meralgia paresthetica, including as secondary to diabetes mellitus and/or a lumbar spine disorder is remanded. Entitlement to service connection for a neurological disorder of the right lower extremity, including meralgia paresthetica, including as secondary to diabetes mellitus and/or a lumbar spine disorder is remanded. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the severity, frequency, and duration of the Veteran’s PTSD symptoms more closely approximate occupational and social impairment with reduced reliability and productivity prior to April 12, 2017. 2. The Veteran’s diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent, and no higher, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435-9411. 2. The criteria for a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1967 to June 1970, including in Vietnam, and was awarded the Purple Heart and Combat Infantryman Badge. This case comes before the Board of Veterans’ Appeals (Board) on appeal from several rating decisions issued by the Department of Veterans Affairs (VA) Regional Offices (RO). The claims were previously remanded by the Board in June 2020 in order to obtain Supplemental Security Income (SSI) records. In July 2020, the RO submitted a request to the Social Security Administration (SSA) for the Veteran’s records. The SSA National Records Center responded in September 2020, and indicated there were no SSA medical records for the Veteran. Therefore, there was substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran’s current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to an initial disability rating in excess of 30 percent for PTSD prior to April 12, 2017 The Veteran believes that he is entitled to a higher rating for his service-connected PTSD with unspecified depressive disorder. From May 5, 2010, through April 11, 2017, the Veteran’s PTSD is rated as 30 percent disabling under Diagnostic Codes 9435-9411. A hyphenated diagnostic code is used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional diagnostic code is shown after the hyphen. Diagnostic Code 9435 addresses unspecified depressive disorder, whereas Diagnostic Code 9411 addresses PTSD. Both are rated according to the same criteria under 38 C.F.R. § 4.130. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 30 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 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 or place; or memory loss for names of close relatives, own occupation or own name. VA mental health treatment notes from April 2010 show the Veteran reported feeling depressed, emotional, and having decreased interest in recreational activities. Additionally, the Veteran explained that he reexperiences feelings and memories associated with his service in Vietnam. The Veteran was afforded a VA examination in July 2010. During the examination, the Veteran reported having difficulties with his familial relationships. He explained that while he maintained a good relationship with his son, he rarely spoke to his daughter, and his wife believed him to be distant and closed off. The Veteran denied having a history of suicidal ideations or violence. He was noted to have symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment, mild memory loss), as well as symptoms that are not associated with a specific rating (nightmares, recurrent and intrusive thoughts of traumatic in-service events, hypervigilance, exaggerated startle response, irritability). The VA examiner concluded that the Veteran’s PTSD symptoms were of moderate severity. In October 2010, the Veteran’s wife submitted a lay statement describing his PTSD symptoms. She stated that the Veteran has nightmares that cause him to jerk awake in terror, and she has learned not to touch him during his sleep due to his extreme startle response. She further explained that the Veteran is forgetful, and when his schedule is disrupted, he becomes upset and anxious. VA treatment notes dated between 2010 and 2016 show that despite being prescribed medication, the Veteran consistently reported having nightmares about his time in Vietnam, and that sometimes he thrashed in bed which endangered his wife. The Veteran continued to deny having any suicidal ideation. There are no other VA examinations dated prior to April 12, 2017, that assessed the severity of the Veteran’s PTSD. Resolving reasonable doubt in the Veteran’s favor, the Board finds that prior to April 12, 2017, the severity of the Veteran’s PTSD symptoms more closely approximate a 50 percent rating. The evidence discussed above shows the Veteran’s PTSD has predominately manifested as several symptoms that are not associated with a particular rating. The July 2010 VA examiner determined the Veteran’s symptoms were moderate. Both the lay and medical evidence indicate the Veteran struggled with some of his familial relationships, and continuously suffered from traumatic nightmares that, at times, caused him to lash out violently. His symptoms continued even while on prescription medication. The Board finds the Veteran is not entitled to a rating in excess of 50 percent prior to April 12, 2017. At no point was the Veteran noted to have exhibited PTSD symptoms listed under or approximate to the 70 and 100 percent ratings criteria. There is no indication that he was unable to perform activities of daily living or maintain his personal hygiene. Further, he repeatedly denied having suicidal ideation throughout the period prior to April 12, 2017. Accordingly, the Veteran’s PTSD warrants a 50 percent rating, and no higher, prior to April 12, 2017. 2. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus The Veteran contends that he is entitled to a higher rating for his service-connected diabetes mellitus. Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran’s disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran’ favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran’s diabetes mellitus required one or more daily injections of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. This criterion requires medical evidence. Camacho v. Nicholson, 21 Vet. App. 360, 364-65 (2007). The Board finds that the Veteran’s diabetes mellitus required only restricted diet and an oral glycemic agent during the period on appeal. VA treatment notes fail to show the Veteran required insulin to manage his diabetes. The Veteran was afforded VA examinations in November 2010 and August 2017. He was noted to treat his diabetes with a restricted diet and a prescribed oral hypoglycemic agent. The examiner’s noted that the Veteran did not require regulation of activities, and that he had not lost weight or strength due to his diabetes. In a June 2011 Notice of Disagreement (NOD), the Veteran stated that he has been placed on restricted activities. He did not provide any details in support of the assertion that his activities are restricted. The Veteran is competent to report reduction in activities and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, VA treatment notes and the VA examination reports of record are against a finding that regulation of activities was required during the period on appeal. In addition, the Veteran does not assert, nor does the record show, that he has any complications of diabetes mellitus. See 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Accordingly, the preponderance of the evidence is against assigning a rating in excess of 20 percent during the period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disorder, including degenerative disc disease is remanded. Although the Board sincerely regrets the additional delay this will cause, further development is necessary prior to the adjudication of the remaining appeals. In an April 2016 decision, the Board remanded the claim of entitlement to service connection for a lumbar spine disability. The Board determined that the June 2012 VA examiner failed to consider the Veteran’s lay statements of continuous symptomatology when formulating his opinion. A new VA medical opinion was provided in August 2017. However, the Board finds the new opinion fails to address the Veteran’s lay statements, and the opinion contains internal inconsistencies. The August 2017 VA examiner noted that the Veteran’s service separation medical report fails to show any complaints of back pain, and that there were no medical records regarding the Veteran’s back condition until 1997. However, the Veteran has consistently claimed to have experienced back pain since an in-service helicopter accident. Next, the VA examiner stated that the Veteran has congenital spinal stenosis disease diagnosed after 1997, and determined that his spinal stenosis preexisted military service and was not aggravated by service. As supporting rationale, the VA examiner relied in part on an article titled “Mayo Clinic Diseases and Conditions Spinal Stenosis.” Specifically, the VA examiner included the following quote: “Most people with spinal stenosis have passed the age of 50. When younger people develop spinal stenosis, the cause is typically a genetic disease affecting bone and muscle development throughout the body.” The Veteran’s representative submitted a statement in May 2020 noting that the VA examiner did not consider the full quotation from the Mayo Clinic article. The Board has reviewed the article and notes that it states the following: “Most people with spinal stenosis are over the age of 50. Though degenerative changes can cause spinal stenosis in younger people, other causes need to be considered. These include trauma, congenital spinal deformity such as scoliosis, and a genetic disease affecting bone and muscle development throughout the body.” Thus, the VA examiner has failed to consider the trauma of the in-service helicopter crash as the cause of or aggravating factor for the Veteran’s spinal stenosis, and again failed to consider the Veteran’s lay statements of pain when determining that his spinal stenosis was not aggravated by service. Accordingly, given that the VA medical opinions are inadequate for decision making purposes, remand is necessary to obtain an adequate medical opinion. Barr v. Nicholson, 21 Vet. App. 303 at 311. 2. Entitlement to service connection for a neurological disorder of the left lower extremity, including meralgia paresthetica, including as secondary to diabetes mellitus and/or a lumbar spine disorder is remanded. 3. Entitlement to service connection for a neurological disorder of the right lower extremity, including meralgia paresthetica, including as secondary to diabetes mellitus and/or a lumbar spine disorder is remanded. Because a decision on the remanded issue of service connection for a lumbar spine disorder will significantly impact a decision on the issue of service connection for bilateral lower extremity neurological disorders claimed as secondary to the lumbar spine disability, the issues are inextricably intertwined. A remand of the claims for service connection for left and right lower extremity neurological disorders is required. 4. Entitlement to a TDIU is remanded. Finally, because a decision on the remanded issues of entitlement to service connection for lumbar spine and neurological disorders of the lower extremities could significantly impact a decision on the issue of TDIU, the issues are inextricably intertwined. A remand of the claim is required. However, the Board notes that the Veteran has failed to respond to previous requests to submit a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim. Woods v. Gober, 14 Vet. App. 214, 224 (2000); see also Hurd v. West, 13 Vet. App. 449, 452 (2000). The Veteran is advised that failure to provide information that may assist VA in adjudicating his claims, could result in an adverse determination. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, with instructions to return the form to the RO. Lumbar Spine 2. Submit the Veteran’s file to an appropriate clinician to determine the nature and etiology of any lumbar spine disorder. Following a review of the claims file, the examiner is requested to furnish opinions with respect to the following questions: 3. The examiner should identify any lumbar spine disorders. (a.) The examiner is reminded that pain alone can constitute a disability if it causes functional impairment. The Board notes that the Veteran has previously been diagnosed with degenerative disc disease of the lumbar spine, and congenital spinal stenosis with neurogenic claudication. 4. For each disorder identified, is such disorder congenital in nature? (a.) If so, please discuss whether it is more properly classified as a congenital disease or a congenital defect. For VA purposes, a defect differs from a disease in that the former is “more or less stationary in nature” whereas the latter is “capable of improving or deteriorating.” Quirin v. Shinseki, 22 Vet. App. 390, 394 (2009); VA Gen. Coun. Prec. 82-90 (July 18, 1990). 5. For each identified disorder considered to be either a congenital disease or an acquired disease, please answer the following: (a.) Did such disability clearly and unmistakably preexist the Veteran’s active service? (b.) If the answer to the above question is “YES,” then is it also clear and unmistakable that such was NOT aggravated beyond its normal progression during the Veteran’s active service? 6. If the answer to either question (a) or (b) is “NO,” assume as true that the Veteran did not enter service with the disability. With that assumption in mind, is it at least as likely as not (50 percent or greater probability) that the disability, congenital or otherwise, had its onset in, or is otherwise related to his period of active service? 7. If the identified disorder is considered to be a congenital defect, please discuss whether such a defect was as likely as not (50 percent probability or greater) subject to a superimposed disease or injury during the Veteran’s military service that resulted in disability apart from the congenital or developmental defect. 8. If the Veteran is diagnosed with a back disability that is not considered to be congenital, then the VA examiner should opine as to whether any such disability is at least as likely as not related to the Veteran’s active service, including his in-service treatment for back pain. 9. In answering the above questions, the examiner is directed to consider the Veteran’s lay reports of experiencing back pain since service. The Board draws attention to the Veteran being involved in an in-service helicopter accident. Additionally, the examiner must discuss the August 2017 VA medical opinion, which relied in part on a Mayo Clinic article that discusses the cause of spinal stenosis. Neurological Disorders of the Lower Extremities 10. Submit the Veteran’s file to an appropriate clinician to determine the nature and etiology of any neurological disorder of the bilateral lower extremities. Following a review of the claims file, the examiner is requested to furnish an opinion with respect to the following: 11. Identify any neurological disorders of the lower extremities. (a.) For each identified disorder, opine whether it is as least as likely as not (50 percent or greater probability) that such disorder is due to or caused by the Veteran’s lumbar spine disorder(s) (b.) For each identified disorder, opine whether it is at least as likely as not (50 percent or greater probability) aggravated beyond the natural progress by the Veteran’s lumbar spine disorder(s). 12. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Miller, 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.