PERIPHERAL NERVE DISORDERS

BARBARA B. COPELAND · 2019 · Case ID: 19159408

MIXED

Summary

The veteran, who served from September 1966 to September 1968, appeals the denial of service connection for a neurological disorder of the left lower extremity and an increased rating for PTSD. The Board reopened the claim for a neurological disorder of the left lower extremity, finding that new and material evidence, specifically a September 2015 private opinion, raised a reasonable possibility of substantiating the claim. This private opinion suggested the neuropathy was due to a service-acquired lower back injury, which could not be ruled out by service treatment records, though not clearly confirmed. The Board remanded this issue for a new VA examination to clarify the etiology and nexus, noting the inadequacy of both the prior VA opinion and the private opinion's lack of definitive findings. The veteran also appealed the denial of an increased rating for PTSD above 50 percent prior to December 14, 2018. The Board reviewed two VA examinations, one from June 2013 and another from December 2018, detailing the veteran's symptoms and their impact on occupational and social functioning. Despite acknowledging symptoms like recurrent distressing memories, irritability, and difficulty concentrating, the Board found the evidence did not demonstrate total occupational and social impairment or deficiencies in most areas required for a 70 percent or 100 percent rating prior to December 14, 2018. The Board denied the increased rating for PTSD, finding the evidence did not preponderate in the veteran's favor and the benefit-of-the-doubt rule was inapplicable. The case was also remanded for a new VA examination regarding the residuals of the dorsal area back injury and for TDIU, as these issues were intertwined with the neurological disorder claim and required further development.

Rationale

New and material evidence received (private opinion); Prior VA opinion inadequate; Lack of confirmed in-service lower back injury

Special Benefit

TDIU

Docket No.

1535634A

Full Decision Text

Citation Nr: 19159408
Decision Date: 07/31/19 Archive Date: 07/31/19

DOCKET NO. 1535634A
DATE: July 31, 2019

ORDER

New and material evidence having been received, the issue of entitlement to service connection for a neurological disorder of the left lower extremity is reopened.

Entitlement to an initial disability rating for posttraumatic stress disorder (PTSD) in excess of 50 percent prior to December 14, 2018 is denied.

REMANDED

Entitlement to service connection for a neurological disorder of the left lower extremity is remanded.

Entitlement to a disability rating in excess of 10 percent for residuals of a back injury, dorsal area, is remanded.

Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded.

FINDINGS OF FACT

1. Service connection for a neurological disorder of the left lower extremity was denied in an unappealed December 1977 rating decision.

2. Evidence received since the December 1977 rating decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim.

3. The Veteran did not manifest occupational and social impairment with deficiencies in most areas prior to December 14, 2018, nor did he manifest total occupational and social impairment prior to December 14, 2018.

CONCLUSIONS OF LAW

1. The December 1977 rating decision that denied service connection for a neurological disorder of the left lower extremity is final. 38 U.S.C. § 4005 (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1977).

2. The criteria for reopening the Veteran’s previously denied claim of service connection for a neurological disorder of the left lower extremity have been met. 38 U.S.C. § 5108 (2018); 38 C.F.R. § 3.156 (2018).

3. The criteria for a disability rating in excess of 50 percent for PTSD prior to December 14, 2018 have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.130, Diagnostic Code 9400 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1966 to September 1968.

This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine.

The Board notes that the Veteran initially appealed the issue of entitlement to an increased disability rating for bilateral hearing loss, and, in August 2015, the RO issued a statement of the case (SOC) responsive to the increased disability rating claim for bilateral hearing loss as well as the claims on appeal. The Veteran submitted a substantive appeal to the Board in October 2015 perfecting all of the issues listed on the SOC except for the increased rating claim for bilateral hearing loss. Therefore, the Board shall not address the issue of an increased rating claim for bilateral hearing loss any further.

1. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a neurological disorder of the left lower extremity.

At issue is whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a neurological disorder of the left lower extremity. As explained below, new and material evidence sufficient to reopen the claim has been received.

In order to reopen a claim which has been denied by a final decision, new and material evidence must be received. 38 U.S.C. § 5108. New and material evidence means evidence not previously submitted to agency decision makers; which relates, either by itself or when considered with previous evidence of record, to an unestablished fact necessary to substantiate the claim; which is neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis.
the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a).

For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992) (in determining whether evidence is new and material, “credibility” of newly presented evidence is to be presumed unless evidence is inherently incredible or beyond competence of witness). The evidence to be considered in making this new and material evidence determination is that added to the record since the last final denial on any basis. Evans v. Brown, 9 Vet. App. 27 (1996); see also Shade v. Shinseki, 24 Vet. App. 110, 120 (2010) (new and material evidence need not be received as to each previously unproven element of a claim in order to justify reopening thereof).

In seeking VA disability compensation, a veteran generally seeks to establish that a current disability results from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131. “Service connection” basically means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces, or if preexisting such service, was aggravated therein. 38 C.F.R. § 3.303. Furthermore, service connection can be established through application of statutory presumptions, including for neurological diseases when manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Service connection may also be granted on a secondary basis for disabilities that are proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310.

The RO originally denied the Veteran service connection for a neurological disorder of the left lower extremity in December 1977. The decision became final after the Veteran failed to submit new and material evidence or file a notice of disagreement within one year of notification of the decision. The Veteran subsequently filed a claim to reopen the issue, and, in August 2013, the RO denied the Veteran’s claim. The Veteran appealed.

Regardless of whether the RO determined new and material evidence had been received, the Board must address the issue of the receipt of new and material evidence in the first instance, because it determines the Board’s jurisdiction to reach the underlying claim and to adjudicate the claim de novo.

The December 1977 rating decision indicated that the Veteran manifested neuropathy of the left lower extremity, but it determined that it was unrelated to the Veteran’s service-connected dorsal spine area disability. Since the December 1977 rating decision, the Veteran submitted a private opinion in September 2015 which indicated that the Veteran’s neuropathy of the left lower extremity was due to a lower back injury that occurred during a period of service. Therefore, the evidence submitted since the last final denial is new and material, and the Veteran’s claim for service connection for a neurological disorder of the left lower extremity is deemed reopened.

2. Entitlement to an initial disability rating for PTSD in excess of 10 percent for PTSD prior to December 14, 2018.

At issue is whether the Veteran is entitled to a disability rating in excess of 50 percent for PTSD prior to December 14, 2018. The Board finds that the Veteran is not entitled to an increased disability rating.

The Veteran first filed for service connection for an acquired psychiatric disorder in December 2004, and, in May 2005, the RO denied service connection. The Veteran filed to reopen the claim in March 2012, and, in August 2013, the RO granted service connection and assigned a disability rating of 50 percent effective the date the claim to reopen was received. The Veteran appealed his initial disability rating. During the pendency of his appeal, the Veteran was assigned a 100 percent disability rating effective December 14, 2018.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.
pendency of his appeal, the Veteran was assigned a 100 percent disability rating effective December 14, 2018.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7

Disability ratings for acquired psychiatric disorders are assigned pursuant to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders.

A 70 percent rating is warranted for 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. Id.

Finally, 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. Id.

When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See Mauerhan. Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Vazquez-Claudio.

The Veteran’s statements and treatment records indicate that the Veteran manifested psychiatric symptoms throughout the period on appeal.

The Veteran underwent a VA examination in June 2013. He was a speech pathologist for his local school system until 2003 when he claimed he was forced into retirement due to his psychiatric symptoms. The Veteran indicated that he is the sole care-giver for his 90-year-old mother, and that this was a source of conflict with his siblings. The Veteran stated that he had been married to his wife of 30 years until she passed away, and that he was currently in a six-year relationship. The Veteran reported that he had a good relationship with his daughter, and that he had acquaintances (including members of a boat club); but no friends. The examiner described a number of psychiatric symptoms including: recurrent and distressing recollections of the event; recurrent distressing dreams of the event; intense psychological exposure to internal and external cues that resemble the traumatic event; physiological reactivity on exposure to internal or external cues that symbolize or resemble an aspect of the traumatic event; efforts to avoid thoughts, feelings, conversations, activities, places or people associated with trauma; feelings of detachment or estrangement; restricted range or affect; difficulty falling or staying asleep; irritability or outbursts of anger; difficulty concentrating; hypervigilance; exaggerated startle response; depressed mood; suspiciousness; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances including work or a worklike setting; and impaired impulse control such as unprovoked irritability. The examiner opined that the Veteran manifested occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.

The Veteran underwent another VA examination on December 14, 2018. He indicated that he had been married to his current wife for four to five years (since approximately 2013 or 2014) and that he had been together with his current wife for 15 years (since approximately 2003). The Veteran stated that he had an OK relationship with his wife and a good relationship with his daughter, his mother, and his younger brother. The Veteran indicated that he had engaged in sporadic violent confrontations with his neighbor as well as several incidents of road rage. The examiner noted a number of psychiatric symptoms including: recurrent, involuntary, and intrusive distressing memories of the traumatic event(s); avoidance of or efforts to avoid distressing memories, thoughts, or feelings about or closely associated with the traumatic event(s); irritable behavior and angry outbursts; reckless or self-destructive behavior; hyper-vigilance; exaggerated startle response; problems with concentration; depressed mood; anxiety; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impaired memory; flattened affect; impaired judgement; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. The Veteran denied any work or any additional work training since the previous examination. The examiner opined that the Veteran manifested occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgement, thinking, or mood.

The weight of the evidence indicates that the Veteran is not entitled to a total disability rating prior to December 14, 2018. In order to meet the criteria for a total disability rating, the Veteran needed to manifest total occupational and social impairment. Nevertheless, the Veteran was able to maintain relationships with members of family throughout the entire period on appeal. Therefore, the Veteran was not totally socially impaired, and, if the Veteran was not totally socially impaired, then he could not have been totally occupationally and socially impaired. Moreover, no VA examiner opined, during the period on appeal, that the Veteran manifested total occupational and social impairment. Therefore, the evidence of record indicates that the Veteran did not manifest total occupational impairment throughout the period on appeal.

The Veteran is not entitled to a disability rating in excess of 50 percent prior to December 14, 2018. In order to meet the criteria for a disability rating of 70 percent the Veteran needed to manifest deficiencies in most areas such as work, school, family relationships, judgement, thinking, or mood. Nevertheless, the Veteran did not meet these criteria prior to December 14, 2018. The Board notes that the Veteran claims that he was separated from his job due to his psychiatric symptoms in 2003. Nevertheless, the period on appeal does not begin until March 2012, and, as such, the Veteran’s ability to work in 2003 is of limited probative value. Additionally, the Veteran’s
entitled to a disability rating in excess of 50 percent prior to December 14, 2018. In order to meet the criteria for a disability rating of 70 percent the Veteran needed to manifest deficiencies in most areas such as work, school, family relationships, judgement, thinking, or mood. Nevertheless, the Veteran did not meet these criteria prior to December 14, 2018. The Board notes that the Veteran claims that he was separated from his job due to his psychiatric symptoms in 2003. Nevertheless, the period on appeal does not begin until March 2012, and, as such, the Veteran’s ability to work in 2003 is of limited probative value. Additionally, the Veteran’s lack of additional work experience or scholastic training between 2012 and 2018 is typical of a retired individual rather than strong evidence of occupational or scholastic deficiencies. Moreover, the Veteran was able to maintain good family relationships between 2012 and 2018. Finally, no VA examiner opined that the Veteran manifested occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgement, thinking, or mood prior to December 14, 2018.

Here, the weight of the probative evidence of record simply fails to demonstrate that the Veteran is entitled to a disability rating in excess of 50 percent prior to December 14, 2018 for an acquired psychiatric disorder. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, entitlement to a disability rating in excess of 50 percent prior to December 14, 2018 for PTSD is denied.

REASONS FOR REMAND

1. Entitlement to service connection for a neurological disorder of the left lower extremity is remanded.

At issue is whether the Veteran is entitled to service connection for a neurological disorder of the left lower extremity. Unfortunately, this matter must be remanded for a new VA examination.

The Veteran’s service treatment records indicate that he injured the dorsal section of his back during a period of service, and the Veteran has been granted service connection for a back condition of the dorsal spine. See May 1969 Rating Decision.

Recent treatment records have been associated with the claims file indicating that the Veteran has a diagnosis of lumbar radiculopathy of the bilateral lower extremities. Nevertheless, the Veteran’s service-connected back condition is a dorsal spine condition rather than a lumbar spine condition.

Moreover, a July 2013 VA medical opinion indicated that the Veteran’s lumbar condition is a separate back condition distinguishable from the Veteran’s service-connected dorsal spine disability. Unfortunately, the Board cannot afford this opinion much weight. In support of the opinion that the Veteran’s lumbar problems are not a later complication of the Veteran’s service-connected dorsal spine disability, the examiner noted that the Veteran did not manifest his current lumbar problems in 1969 or in 1971. If the Veteran’s lumbar problems are a later complication of his service-connected back condition, then they would likely not have manifested in 1969 or 1971.

The Board notes that the Veteran submitted an October 2015 private opinion that is highly critical of the July 2013 VA medical opinion. Nevertheless, the private opinion although clearly critical of the July 2013 VA medical opinion does not actually make any findings on the nature or etiology of the Veteran’s condition. Rather, the physician indicates that the conclusion of the July 2013 opinion is preposterous, and the physician indicates that he anxiously awaits the Veteran’s service records so that he can make a separate determination. Unfortunately, this non-opinion opinion does not actually address an unproven element of the Veteran’s claim.

As previously noted, the Veteran submitted a private opinion in September 2015 which indicated that the Veteran’s neuropathy of the left lower extremity was due to a lower back injury that occurred during a period of service. Nevertheless, the Veteran’s service treatment records do not clearly indicate that he manifested a lower back injury. On the other hand, a lower back injury cannot be ruled out based on the Veteran’s service treatment records.

Upon reviewing the evidence of record, the Board finds that, unfortunately, further development is required before adjudicating the Veteran’s claim. The Veteran has submitted private opinions which suggest that the Veteran should be granted service connection. Nevertheless, the Board cannot grant service connection based on these opinions, because the opinions rely on the assumption of a lower back injury during a period of service which cannot be ruled out but cannot be confirmed either. The Board, however, cannot deny the Veteran’s claim, because the negative VA opinion does not offer an alternative etiology of the Veteran’s neurological condition of the lower left extremity which would explain where, if not from the Veteran’s period of service, the Veteran’s lower left extremity disorder came from. Once VA undertakes to provide the Veteran with a VA examination, it must provide the Veteran with an adequate one, and an adequate examination is sufficiently detailed in order to ensure that VA’s evaluation of the Veteran’s claim is fully informed. Barr v. Nicholson, 21 Vet. App. 303 (2007). Therefore, this matter must be remanded for a new VA examination in order to address the issues discussed above.

2. Entitlement to a disability rating in excess of 10 percent for residuals of a back injury, dorsal area, is remanded.

The Veteran contends that he is entitled to a disability rating in excess of 10 percent for residuals of a back injury, dorsal area. As discussed above, the issue of entitlement to service connection for lumbar radiculopathy of the left lower extremity is being remanded for a new VA examination. Any such development has a high chance of producing evidence relevant to the current severity of the Veteran’s back condition. Therefore, this matter must be remanded as well in order to avoid piecemeal appellate litigation. Harris v. Derwinski, 1 Vet. App. 180 (1991).

2. Entitlement to TDIU is remanded.

The issue of entitlement to TDIU has been raised by the record, because the Veteran has alleged that his service-connected disabilities prevent him from working. Rice v. Shinseki, 22 Vet. App. 447 (2009). The issue of entitlement to TDIU is inextricably intertwined with the dorsal area back injury residuals and must be remanded as well. See Harris.

The matters are REMANDED for the following action:

1. Copies of updated treatment records should be obtained and associated with the claims file.

2. Arrange to provide the Veteran with a VA examination in order to discuss the current severity of the Veteran’s dorsal area back injury residuals.

3. Arrange to provide the Veteran with a VA examination in order to address the following:

(a.) Is it at least as likely as not (50 percent or greater probability) that a medical nexus exists between a current neurological disorder of the left lower extremity and an in-service incurrence? Why or why not?

(b.) Is it at least as likely as not (50 percent or greater probability) that a current diagnosis of a neurological disorder of the left lower extremity is proximately due to or aggravated by a previously service-connected disability? Why or why not?

(c.) What is the medical significance, if any, of the Veteran’s current treatment records which indicate that the Veteran has a current diagnosis of lumbar radiculopathy of the lower extremities? Why?

(d.) What is the medical significance, if any, of the private opinions submitted by the Veteran (describe above in the body of the remand section and available in VBMS) which suggest that the Veteran is entitled to service connection for a neurological disorder of the left lower extremity? Why?

4. Arrange to provide the Veteran with a VA examination in order to address the following:

(a.) Comment on the Veteran’s ability to function in an occupation environment.

(b.) Describe the functional impairment caused solely by the Veteran’s service-connected disabilities.

BARBARA B. COPELAND

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board David R. Seaton, 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.

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