Citation Nr: 21015737 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 18-02 241 DATE: March 18, 2021 ORDERS An initial compensable rating for service-connected hypertension is denied. A total disability rating based on individual unemployability (TDIU) from April 2019 is granted. REMANDED A disability rating in excess of 10 percent for residuals of a right index finger injury is remanded. An initial compensable rating for a service-connected bilateral spermatocele is remanded. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran’s diastolic blood pressure was predominantly less than 100, and his systolic blood pressure was predominantly less than 160. 2. The evidence of record including August 2018 and November 2020 VA examinations and the Veteran and his spouse’s competent and credible statements indicate that the Veteran’s various service-connected conditions prevent him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria have not been met for a compensable rating for service-connected hypertension. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104, DC 7101. 2. The criteria have been met for a TDIU rating on a schedular basis as of April 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from March 1989 to October 1998. This case comes to the Board on appeal of a May 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a May 2018 decision, the Board denied an initial rating in excess of 10% for residuals of a right index finger injury, a compensable rating for hypertension associated with HIV related illness, and a compensable rating for a bilateral spermatocele. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Veterans Court). In a January 2019 Joint Motion for Remand (JMR), the parties agreed that the Board erred by providing an inadequate statement of reasons or bases. 38 U.S.C. § 7104(d)(1). In a February 2019 Order, the Veterans Court granted the JMR. These matters returned to the Board in August 2019 and were remanded for further development. 1. An initial compensable rating for service-connected hypertension is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Hypertension is evaluated under DC 7101, which indicates that a 10 percent rating requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. A 20 percent rating requires diastolic pressure predominately 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating requires diastolic pressure predominantly 120 or more, while a 60 percent rating requires diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. Factual Background The Veteran underwent a VA examination in September 2008. The report indicated that the Veteran’s blood pressure was 140/88 right arm sitting, 140/88 left arm sitting, 140/90 right arm supine. Subsequent medical treatment records throughout the record indicate diastolic pressure predominantly under 100 and systolic pressure predominantly under 160: 145/101 in April 2011, 136/92 in February 2013, 130/75 in August 2013, 135/82 in December 2013, 143/84 in June 2017, 145/87 in October 2017, 128/81 in November 2017, 158/81 in March 2017. See medical treatment records. Upon three separate medical visits in January 2018, the Veteran’s blood pressure was 132/78, 146/83 and 140/67. The Veteran underwent another VA examination in August 2020. The report indicated that the Veteran’s blood pressure was 139/81, 131/86 and 133/86 on three separate readings. The conducting physician indicated that while the Veteran reports dizziness and fatigue, his blood pressure has been managed without any medications. Analysis There is no objective evidence of record showing that the Veteran’s diastolic pressure has been predominantly 100 or more or that his systolic pressure has been predominantly 160 or more. Thus, the Board finds that the preponderance of the evidence is against the award of a compensable rating during the period on appeal because the criteria for a 10 percent rating under DC 7101 are not met. 2. From April 2019, a TDIU rating is granted on a schedular basis. It is the established policy of VA that all veterans who are unable to obtain and maintain substantially gainful employment because of service-connected disabilities shall be rated as totally disabled. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 3.340. Substantially gainful employment is work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). The central inquiry is whether the Veteran’s service-connected disabilities alone are severe enough to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). VA must consider the veteran’s level of education, special training, and previous work experience, but may not consider age or the effect of nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. SSA determinations are relevant but not binding on the Board because there are significant differences between SSA and VA criteria. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A schedular TDIU rating may be assigned when the unemployable veteran has (1) a single service-connected disability rated at 60 percent or more; or (if there are two or more service-connected disabilities), (2) one disability rated at 40 percent or more, and the additional service-connected disabilities bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Eligibility In the Veteran’s application for a TDIU rating, he indicated that he was gainfully employed until April 2019. As such, the Veteran did not meet the criteria for a TDIU on either a schedular basis or extraschedular basis until that time. At the time of the Veteran’s application for a TDIU rating, the Veteran was rated at 70 percent for his service-connected post-traumatic stress disorder (PTSD). Accordingly, the Veteran met the criteria for a TDIU rating on a schedular basis at that time. 38 C.F.R. § 4.16(a). Factual Background In the Veteran’s application for a TDIU rating, he reported that he worked in carpeting up until April 2019. The Veteran explained that his job duties included going into the homes of potential customers and giving them estimates. The Veteran further explained that paranoia from his PTSD made him unable to continue this work. The Veteran’s highest level of education was two years of college and he did not receive any other job education or training prior to or since he reportedly became too disabled to work. At an August 2018 VA examination, the conducting physician indicated that the Veteran’s PTSD symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported during the examination that his work had started to get worse with paranoia and being around people. The Veteran explained that he has anxiety attacks and is always in a protective state. The conducting physician explained that the Veteran’s PTSD symptoms included impaired judgment, difficulty in adapting to stressful circumstances, including work or a worklike setting and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran’s spouse provided a statement which indicated that the Veteran’s PTSD has gotten worse to the point where he has become “a hermit, rarely leaving the house.” The Veteran’s spouse explained that the Veteran believes the entire world, including herself, is against him. See February 2020 statement. In addition, the Veteran reported that flare-ups of his service-connected bilateral spermatocele also impair his ability to work because the acute pain, swelling, and expansion of his scrotum renders him unable to sit for long periods of time. See November 2020 statement. Finally, the Veteran reported that his service-connected right index finger disability also interferes with his ability to work because it makes it hard for him to make a fist or carry heavy items as his job requires. See November 2017 treatment. A November 2020 VA examiner opined that the Veteran’s service-connected bilateral spermatocele prevents him from doing more than “light work” (which was defined as exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently). Analysis The Board finds that, during the period on appeal, the Veteran has been unable to obtain or maintain employment requiring physical labor. This is consistent with the findings of the November 2020 VA examination which indicates that the Veteran would only be able to do “light work.” Additionally, the Board assigns probative value to the Veteran’s statements that his service-connected right index finger disability impairs his ability to make a fist and carry heavy objects. What remains for consideration is whether the Veteran was able to obtain and maintain employment that would not require physical activity. The Veteran has provided competent and credible reports that his paranoia makes it difficult for him to be around people due to his PTSD symptoms. The Board also assigns probative value to his spouse’s statement that the Veteran rarely leaves the house and thinks the world is against him. The Board also notes that the August 2018 PTSD examination indicates that the Veteran’s symptoms include difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting and impaired impulse control, such as unprovoked irritability with periods of violence. The Board finds that these symptoms impair the Veteran’s ability to maintain employment that would not require physical activity. Additionally, the Veteran has provided competent and credible reports that flare-ups of his bilateral spermatocele renders him unable to sit for long periods of time. Given the above, the Board finds that the Veteran’s service-connected disabilities render him unable to obtain or sustain substantially gainful employment. Thus, a TDIU rating is granted as of April 2019. REASONS FOR REMAND 1. An initial disability rating in excess of 10 percent for residuals of a right index finger injury is remanded. The Veteran underwent a VA examination for his right index finger in August 2011, noting that he had pain off and on and limited use of his right hand. The report indicates that there is an overall decrease in hand strength and dexterity, but no other hand symptoms or flare-ups were noted. The report indicates active range of motion for the right hand and no objective evidence of pain; extension of DIP joint was limited by 15 degrees, and there was no gap between the index finger and proximal transverse crease of hand on maximal flexion of finger. At an October 2017 VA treatment, the Veteran reported that he could not flex the fingers of his right hand. At a November 2017 VA treatment, the Veteran reported that his right finger still felt numb and that it was hard to make a fist. At a January 2018 medical treatment, the Veteran’s motor strength upon flexion and abduction of his right fingers was noted at 5/5. The Veteran reported in an April 2019 statement that he has limited range of motion and loss of function of his right index finger due to pain, weakness and easy fatigability. The Veteran reported frequent and severe flare ups of his right finger. The Veteran was last afforded a VA examination for his hand in August 2011. The Board finds that this examination is too remote in time to adequately support a decision for an increased disability rating for residuals of a right index finger injury. Because there may have been changes his to right index finger disability since 2011, and to ensure that the Veteran’s own reports are sufficiently considered by a VA examiner, the Board finds that a remand is necessary to afford the Veteran a current VA examination. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) 2. An initial compensable rating for service-connected bilateral spermatocele is remanded. In compliance with the August 2019 Board remand instructions, a November 2020 VA addendum opinion was issued. The physician opined that the Veteran’s bilateral spermatocele is congenital and that there are no plausible symptoms from congenital small cysts felt to be present. The physician also stated there was no history of prostatitis in the claims file. The Board notes that this is factually erroneous because the February 2019 VA examination indicated that the Veteran has a history of chronic prostatitis. Accordingly, the Board finds that this examination is inadequate. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This issue is remanded to provide the Veteran with an adequate medical examination reports and opinion. Where the remand orders of the Board are not fully complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268, 271 (1998). Furthermore, the Veteran’s spouse reported in a November 2020 statement that the symptoms of the Veteran’s bilateral spermatocele have worsened. On remand, the Veteran should be afforded a new VA examination to determine the current nature and severity of his bilateral spermatocele. The Board apologizes to the Veteran for an additional remand but finds it is in his best interest; although the Board sincerely regrets the additional delay, a remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran’s claim so that every possible consideration is afforded. The matters are REMANDED for the following action: 1. Please note that this Veteran’s case has been advanced on the docket and, by law, ALL remanded claims must be processed expeditiously. 2. Provide the Veteran with an additional VA examination to ascertain the current severity and manifestations of his service-connected residuals of a right index finger injury. The examiner is requested to review all pertinent records associated with the claims file. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. (a). Identify the Veteran’s residuals of right index finger and pathology found to be present. (b). Provide the range of motion of his right index finger and indicate whether there is objective evidence of pain on motion. (c.) Test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing for the right index finger. Also, test range of motion of the opposite undamaged joint (the left index finger). If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. (d). Indicate whether the Veteran’s right index finger exhibits weakened movement, excess fatigability, or incoordination during flare-ups or upon repetitive use. (e). Specifically indicate whether there is any additional limitation in range of motion or functional impairment during flare-ups or upon repetitive use. To the extent possible, express any functional loss in terms of additional degrees of limited motion of the Veteran’s right index finger. A complete rationale should be provided for any opinions expressed and conclusions reached. 2. Provide the Veteran with an additional VA examination regarding the possible relationship between the Veteran’s diagnosed chronic prostatitis and his service-connected bilateral spermatocele and erectile dysfunction. a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic prostatitis was incurred during the Veteran’s active service? b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic prostatitis was CAUSED by the Veteran’s service-connected bilateral spermatocele or erectile dysfunction? c) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s chronic prostatitis disability was AGGRAVATED by the Veteran’s service-connected or erectile dysfunction disabilities? (Aggravation means any increase in severity beyond natural progression.) d) Please describe in detail any pain, edema (swelling), aching or any other symptoms associated with the Veteran’s spermatocele (and prostatitis if prostatitis is found to be service connected). If there are NO symptoms associated with the Veteran’s spermatocele, please so state. In your response, please consider the Veteran’s June 2017 VA treatment records showing scrotal and testicular swelling and right testicular infarct and the Veteran’s November 2020 statements reporting constant flare-ups of genital pain and associated pain and swelling so severe that he is unable to stand. A complete rationale should be provided for any opinion expressed. The rationale for all opinions, with citation to relevant medical findings, must be provided. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.