Citation Nr: 21041914 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-58 458 DATE: July 10, 2021 ORDER Whether new and material evidence has been received to reopen the claim for service connection for left upper extremity (LUE) peripheral neuropathy is granted. Whether new and material evidence has been received to reopen the claim for service connection for right upper extremity (RUE) peripheral neuropathy is granted. A 70 percent rating for the Veteran's post-traumatic stress disorder (PTSD) is granted. Entitlement to a total disability rating based on unemployability is granted. REMANDED Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy is remanded. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy is remanded. Entitlement to service connection for heart condition is remanded. Entitlement to service connection for subfascial lipoma, left upper back is remanded. Entitlement to a rating in excess of 10 percent for service-connected hiatal hernia is remanded. FINDINGS OF FACT 1. A March 1997 rating decision, which denied service connection for peripheral neuropathy based on a finding the Veteran did not have the condition in service or after service, is final. 2. Subsequent to the March 1997 rating decision, evidence was associated with the claims file that is neither cumulative nor redundant of evidence already of record and raises a reasonable possibility of substantiating the claims of entitlement to service connection for LUE peripheral neuropathy and RUE peripheral neuropathy. 3. The Veteran's PTSD was manifested by occupational and social impairment with deficiencies in most areas such as work, thinking and mood, but not total occupational and social impairment. 4. The Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The March 1997 rating decision that denied service connection for peripheral neuropathy is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. Evidence received since the final March 1997 determination is new and material, and the Veteran's claims of entitlement to service connection for LUE peripheral neuropathy and RUE peripheral neuropathy are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a 70 percent rating PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. 4. The criteria for a TDIU were met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from June 1967 to November 1970. A November 2018 Board decision remanded the claims herein. The claims have now returned for further appellate review. SERVICE CONNECTION 1. Whether new and material evidence has been received to reopen the claim for service connection for left upper extremity (LUE) peripheral neuropathy. 2. Whether new and material evidence has been received to reopen the claim for service connection for right upper extremity (RUE) peripheral neuropathy. Generally, a claim which has been denied in a final unappealed RO decision may not be reopened and allowed. 38 U.S.C. § 7105(c). An exception to that rule is that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. 38 U.S.C. § 5108. In deciding whether new and material evidence has been submitted, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether new and material evidence has been submitted is low. Shade v. Shinseki, 24 Vet. App. 110 (2010). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). The Veteran's claim of entitlement to service connection for peripheral neuropathy was denied initially by a March 1997 rating decision based on a finding that there was no evidence of the condition during service or following service. VA did not receive an appeal or new and material evidence within one year of that decision; therefore, the March 1997 rating decision is final. At the time of the March 1997 rating decision, the record consisted of service medical records and an August 1971 VA examination. Subsequent to the March 1997 rating decision, VA received updated VA treatment records, private treatment records, an April 2016 private treatment letter, a November 2017 private treatment letter, and an August 2018 private treatment record. This evidence qualifies as new evidence because it was not of the record at the time of the March 1997 rating decision and is not cumulative or redundant of the prior existing evidence of record. This evidence is material, in that it relates to unestablished facts necessary to substantiate the claim, specifically whether the Veteran has a diagnosis of lower extremity peripheral neuropathy. This new evidence raises a reasonable possibility of substantiating the Veteran's service connection claim. Accordingly, the Board finds that the Veteran has submitted new and material evidence sufficient to reopen his claims of entitlement to service connection for LUE peripheral neuropathy and RUE peripheral neuropathy. 3. Entitlement to a rating in excess of 50 percent for service-connected post-traumatic stress disorder (PTSD). The Veteran's posttraumatic stress disorder is assigned a 50 percent disability rating. The Veteran states that his PTSD is more severe than the assigned rating reflects. The Veteran's PTSD is currently rated under Diagnostic Code 9411. VA regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130. Notably, the term "such as" in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms listed. Diagnostic Code 9411 provides a noncompensable rating for a mental condition that has been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. 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. Id. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran was afforded a VA examination in November 2016 to evaluate the severity of his posttraumatic stress disorder. The examining psychologist reported that the Veteran exhibited symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulties in establishing and maintaining effective work and social relationships. The Veteran's symptoms also manifested as hypervigilance, exaggerated startle response, problems, and sleep disturbance. Additionally, the Veteran experienced distressing memories of traumatic events, and persistent negative emotions. The examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. A May 2019 Mental Health Diagnostic Study Note documents that the Veteran experienced anxiety, inability to stop or control worrying nearly every day and trouble relaxing, irritability, and fear of something happening more than half the days. In a subsequent May 2019 Mental Health Diagnostic Study Note, the Veteran exhibited suicidal ideation by reporting feelings that he would be better off dead or hurting himself in some way more than half the days. The Veteran was afforded an additional VA examination to evaluate his posttraumatic stress disorder in March 2021. The examiner endorsed symptoms of depressed mood, anxiety, and chronic sleep impairment. The Veteran also had mild memory loss as well as impairment of short-and long-term memory, flattened affect, and difficulty establishing and maintaining effective work and social relationships. The examiner opined that the Veteran's PTSD had not worsened since the most recent VA examination, but opined that the disorder resulted in total social and occupational impairment. The examiner explained that she was unable to differentiate between the Veteran's dementia and PTSD symptoms and therefore evaluated them together. Initially, the Board finds that throughout the appeal, the Veteran's service-connected psychiatric disorder has been productive of occupational and social impairment in most areas due, at least in part, to suicidal ideation. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Accordingly, a 70 percent rating is warranted. Despite the most recent VA examiner's opinion that he Veteran's psychiatric disorder results in total social and occupational impairment, the Board finds that the criteria for a 100 percent rating are have not been satisfied. On the one hand, the Board attributes the symptoms of dementia that overlap with the service-connected PTSD when evaluating the severity of the Veteran's PTSD. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of a service-connected disability and a nonservice-connected disability, reasonable doubt must be resolved in the appellant's favor and the symptoms in question attributed to the service-connected disability). However, notwithstanding those symptoms, the Board finds that the evidence affirmatively opposes a finding of total social impairment, which is a necessary element of the criteria for a 100 percent rating. In this regard, the evidence clearly shows that the Veteran has maintained a relationship with his wife throughout the pendency of the appeal. Thus, despite evidence of serious impairment due to symptoms such as difficulty communicating, memory problems, and even suicidal ideation, the Board cannot find total social impairment where, as here, the Veteran maintained a close relationship with his wife. Accordingly, a 100 percent rating is denied. 4. TDIU Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran is in receipt of service connection for PTSD, rated 70 percent disabling; hiatal hernia and gastritis, rated 10 percent disabling; and peripheral neuropathy of the lower extremities, rated 10 percent disabling. These disabilities satisfy the schedular criteria for a TDIU. The evidence shows that he was last employed by the US post office in June 2012 and does not possess a college education. The Board concludes that the combined functional impairment of the Veteran's service-connected gastrointestinal, lower extremity, and psychiatric disorders have reasonably precluded him from obtaining and maintaining substantially gainful employment consistent with his education and employment history throughout the pendency of the appeal. See Geib, 733 F.3d at 1357. Accordingly, a TDIU is warranted. REASONS FOR REMAND 1. Entitlement to service connection for left upper extremity (LUE) peripheral neuropathy is remanded. 2. Entitlement to service connection for right upper extremity (RUE) peripheral neuropathy is remanded. 3. Entitlement to service connection for heart condition is remanded. 4. Entitlement to service connection for subfascial lipoma, left upper back. The Veteran seeks service connection for left upper extremity peripheral neuropathy and right upper extremity peripheral neuropathy, a heart condition, and subfascial lipoma. Under McClendon v. Nicholson, 20 Vet. App. 79, 81 (2006), a VA medical examination must be provided when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. See 38 U.S.C. § 5103A (d)(2); 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record "indicate" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McClendon, 20 Vet. App. at 83. The Veteran is currently entitled to service connection for right and left upper lower extremity peripheral neuropathy. He explains experiencing similiter symptoms of peripheral neuropathy in his right and left upper extremities. Additionally, the Veteran's private treatment records show a positive medical history for irregular heartbeat. His VA treatment records show that he takes continuous medication for "blood pressure/heart". The Board cannot make a fully informed decision on these issues because no VA examiner has opined whether the Veteran's claimed disabilities are related to the Veteran's service or service-connected disability, to include exposure to agent orange. Regarding the Veteran's claim of entitlement to subfascial lipoma, the Veteran's treatment records show that he had lipomas resected from his right abdominal wall in the 1970s, and another lipoma resected from his back in 2000. See Dr. S.D. letter dated March 2015. The Veteran states that he has a lipoma skin condition due to exposure to Agent Orange. While an April 2015 examiner documented that the Veteran's lipomas did not result in scars, the examiner documented that the Veteran's lipomas are identified as a current "skin condition". Clarification is needed to identify the characteristics as well as etiology of the Veteran's skin condition. 5. Entitlement to a rating in excess of 10 percent for service-connected hiatal hernia is remanded. With regard to the Veteran's claim for a rating higher than 10 percent for his hiatal hernia disability, the Board observes that the Veteran has not been afforded VA examination approximately two years and the Veteran has indicated that his symptoms worsened since his last VA examination. As such, the Board finds it necessary to remand this matter to afford the Veteran an opportunity to undergo VA examinations to assess the severity of his hiatal hernia disability. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the current severity of his hiatal hernia. The determination of whether an in-person examination should be left to the discretion of the examiner. 2. Schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) as to the etiology of any heart, upper left and upper right peripheral neuropathy, and/or subfascial lipoma disabilities. The determination of whether an in-person examination should be left to the discretion of the examiner. The VA examiner(s) is requested to address the following: Is it at least as likely as not that the Veteran has a heart condition, upper left or upper right peripheral neuropathy disability, or subfascial lipoma disability that had onset, or is otherwise related to, his active military service? Is it as least as likely as not that a heart condition, upper left or upper right peripheral neuropathy disability, or subfascial lipoma disability was (i) caused or (ii) aggravated (permanently worsened) by one or more of the Veteran's service-connected disabilities? Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Booker 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.