EYE IMPAIRMENT OF

MATTHEW TENNER · 2020 · Case ID: 20022895

MIXED

Summary

The Veteran, who served in the United States Air Force from March 1954 to January 1963, died in September 2017. His widow was substituted as appellant. The Veteran sought to reopen a claim for a right eye disorder, service connection for a left eye disorder, compensation under 38 U.S.C. § 1151 for a right eye disability, an earlier effective date for PTSD, and an increased rating for PTSD. The Board denied the reopened claim for the right eye disorder, finding no new and material evidence was submitted since the prior final denial. The claim for a left eye disorder was denied due to insufficient evidence of an in-service event or aggravation, as service treatment records showed no complaints or treatment for eye issues, and vision was 20/20 at discharge. The § 1151 claim was denied because the Veteran's right eye blindness was due to natural progression of a pre-existing condition, not VA negligence or failure to treat. Service connection for PTSD was granted at 70%, with the Board finding the evidence supported the required occupational and social impairment. An earlier effective date for PTSD was denied as no claim was filed within one year of separation. A TDIU award was granted, based on the 70% PTSD rating and other service-connected disabilities, supported by multiple private medical and vocational opinions indicating unemployability.

Rationale

No new and material evidence submitted; Evidence considered cumulative and redundant; Prior denial became final

Service Branch

AIR FORCE

Special Benefit

§1151; TDIU

Docket No.

17-37 410

Full Decision Text

Citation Nr: 20022895
Decision Date: 04/02/20 Archive Date: 04/02/20

DOCKET NO. 17-37 410
DATE: April 2, 2020

ORDER

The petition to reopen a claim of entitlement to service connection for a right eye disorder is denied.

Service connection for a left eye disability is denied.

Compensation under 38 U.S.C. § 1151 for a right eye disability is denied.

A disability rating of 70 percent for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse disorder is granted.

An effective date earlier than July 30, 2014 for the award of service connection for PTSD with depressive disorder and alcohol abuse disorder is denied.

A total disability rating based on individual unemployability is granted.

FINDINGS OF FACT

1. A March 2012 rating decision, in pertinent part, denied the Veteran’s claim of entitlement to service connection for a right eye disorder. The Veteran did not appeal this denial, and no new and material evidence was submitted within the appeal period as to this issue; thus, the decision became final.

2. The evidence associated with the record since the March 2012 rating decision is cumulative and redundant of evidence previously of record, and does not relate to an unestablished fact necessary to adjudicate the claim of entitlement to service connection for a right eye disorder.

3. The preponderance of the evidence is against finding that a left eye disorder began during active service, or is otherwise related to an in-service injury or disease.

4. The competent, probative evidence does not demonstrate the existence of additional right eye disorders due to medical treatment furnished by VA, to include additional loss of vision.

5. The initial claim of service connection for PTSD was received by VA on July 30, 2014; there are no documents or communications dated prior to July 30, 2014, that constitute a claim of service connection for PTSD.

6. The symptoms associated with the Veteran’s PTSD resulted in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.

7. The Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for reopening a previously denied claim of entitlement to service connection for a right eye disorder have not been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156.

2. The criteria for service connection for a left eye disorder are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

3. The criteria for entitlement to compensation under 38 U.S.C. § 1151 for a right eye disorder as a result of VA medical treatment have not been met. 38 U.S.C. § 1151, 5103, 5107; 38 C.F.R. §§ 3.159, 3.361.

4. The criteria for an effective date prior to July 30, 2014, for the grant of service connection for PTSD have not been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 19.2, 3.157, 3.400.

5. The criteria for a 70 percent evaluation, but no greater, for the Veteran’s 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.

6. The criteria for a TDIU are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1954 to January 1963 in the United States Air Force. He died in September 2017.

For claimants who died on or after October 10, 2008, 38 U.S.C.§5121A permits an eligible person to file a request to be substituted as the appellant for purposes of processing a claim to completion. The appellant, who is the Veteran’s widow, has been substituted for him pursuant to 38 U.S.C.§5121A.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional
S FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from March 1954 to January 1963 in the United States Air Force. He died in September 2017.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The claims were remanded in December 2018 for additional development.

Claim to Reopen

1. Right Eye

Generally, a claim that has been denied by an unappealed RO decision may not thereafter be reopened. 38 U.S.C. §§ 7104(b), 7105(c). An exception to this rule exists for cases in which new and material evidence is presented or secured with respect to a claim that has been disallowed, in which case the claim must be reopened and the former disposition reviewed. 38 U.S.C. § 5108.

New evidence means evidence not previously submitted to agency decisionmakers, and material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). This is a low threshold in which the phrase raises a reasonable possibility should be interpreted as enabling rather than precluding reopening. Shade v. Shinseki, 24 Vet. App. 110, 121 (2010). The credibility of the newly submitted evidence is presumed, although not blindly accepted as true if patently incredible. Justus v. Principi, 3 Vet. App. 510 (1992).

The Veteran seeks to reopen his claim of entitlement to service connection for a right eye disorder.

In a March 2012 rating decision, the RO, in pertinent part, denied entitlement to service connection for a right eye disorder, as the evidence did not show a right eye disorder was incurred in or caused by active service. The Veteran did not appeal the March 2012 decision or submit additional evidence within one year. Thus, the March 2012 decision became final. In July 2014, the Veteran filed a request to reopen his claim of entitlement to service connection for a right eye disorder.

The pertinent question is whether the Veteran has submitted new and material evidence since the March 2012 rating decision that, when viewed alongside the evidence already of record, raises a reasonable possibility of substantiating the claims of entitlement to service connection for a right eye disorder.

Unfortunately, this is not the case. Evidence associated with the record since the March 2012 rating decision relevant to the Veteran’s claim of entitlement to service connection for a right eye disorder includes VA treatment records and the Veteran’s statements regarding his claimed disability.

The evidence submitted since the March 2012 rating decision is not new and material. Although the VA treatment records showed ongoing treatment for the Veteran’s right eye disorders, they do not provide evidence showing the Veteran’s right eye disorder was incurred in or caused by active service. His statements are similar to those previously made and thus are duplicative. Accordingly, new and material evidence to reopen the finally disallowed claim of entitlement to service connection for a right eye disorder has not been submitted, the benefit-of-the-doubt doctrine is not for application, and the claim for entitlement to service connection for lea right eye disorder is not reopened. Gilbert v. Derwinski, 1 Vet. App. 4 (1990); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

Service Connection

2. Left Eye

The Veteran asserted that he had a left eye disorder incurred during active service.

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v.
7(b); 38 C.F.R. § 3.102.

Service Connection

2. Left Eye

The Veteran asserted that he had a left eye disorder incurred during active service.

The Veteran had not been afforded a VA examination as to his left eye claim because the evidence does not meet the low threshold under applicable case law. VA must provide a medical examination when there is evidence of the following: (1) a current disability; (2) an in-service event, injury, or disease; (3) some indication that the claimed disability may be associated with the established event, injury, or disease; and (4) insufficient competent evidence of record for VA to make a decision. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i).

The question for the Board is whether the Veteran had a disability that began during service or was at least as likely as not related to an in-service injury, event, or disease.

The Board concludes that, while the Veteran had a diagnosis of a left eye disorder, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease.

Review of the Veteran’s service treatment records (STRs), including examinations dated in January 1954, November 1957, and January 1963, show no documentation of complaints or treatment for any left eye injury or complaints, nor has the Veteran provided a detailed description of any eye injury during a period of active duty. Therefore, there is no probative evidence of an in-service event, injury, or disease in the left eye.

Post-service records include an October 1975 note in which the Veteran reported poor vision in his left eye for two weeks. The Veteran went to the hospital and was referred to a private ophthalmologist on consultation. The reported diagnosis was partial central vein thrombosis of the left eye with bilateral hypertensive retinopathy. An April 1997 note indicated the Veteran had a history of sharp pain in his eyes for 20 years. It was noted he was seen in 1975 for retinal bleeding due to alcoholism. In a December 1997 note, the Veteran reported he came back from Korea as an addict. He referred to alcohol. He stated that he had some problems with his eye due to “anxiety from the alcohol withdrawal.” In an October 2002 note, the Veteran reported in 1975 he was drinking heavy and had high blood pressure. He has problems with pain in his left eye. He stated he was told several years ago that he had extensive damage to his left eye. This all went on while he was in service in Korea. The diagnosis was old CRV occlusion in the left. An April 2010 note showed a diagnosis of glaucoma in both eyes and CRV occlusion in the right eye. VA treatment records showed continued treatment for eye disorders without discussion of etiology.

A January 2012 VA examination included diagnoses of bilateral pseudophakia. No etiology opinion was provided.

As there is no probative evidence of an in-service event, injury or disease, there is no indication that the claimed disability may be associated with or aggravated by service; therefore, VA is under no obligation to provide an examination. Although the Veteran asserted he has had eye problems since service, the service treatment records and contemporaneous records do not support that assertion. Service treatment records show that his vision was 20/20 at his discharge exam in 1963. At that same examination, the Veteran did not report any history of eye issues nor was any eye condition found. Moreover, while the report describes treatment in service for several conditions such as gonorrhea, an ulcer, duodenum, and uretheritis, and a surgical gastrectomy, it does not describe any eye problems. Without evidence of an in-service incurrence or aggravation, service connection cannot be
by service; therefore, VA is under no obligation to provide an examination. Although the Veteran asserted he has had eye problems since service, the service treatment records and contemporaneous records do not support that assertion. Service treatment records show that his vision was 20/20 at his discharge exam in 1963. At that same examination, the Veteran did not report any history of eye issues nor was any eye condition found. Moreover, while the report describes treatment in service for several conditions such as gonorrhea, an ulcer, duodenum, and uretheritis, and a surgical gastrectomy, it does not describe any eye problems. Without evidence of an in-service incurrence or aggravation, service connection cannot be established.

Accordingly, for the reasons and bases discussed above, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt rule is not for application, and entitlement to service connection for a left eye disorder is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

3. 38 U.S.C. § 1151

The Veteran is currently pursuing compensation benefits under 38 U.S.C. § 1151. Specifically, he contends that he experienced loss of vision due to VA’s failure to diagnose and treat his eye disorder. In a June 2015 statement, the Veteran stated he was receiving eye care in Montana and then moved to Texas where he was denied eye care. He asserted that he had 20/20 vision in 2009 and was blind in 2010.

Under 38 U.S.C. § 1151, compensation may be paid for a qualifying additional disability or qualifying death from VA treatment or vocational rehabilitation as if the additional disability or death were service connected. In order for a claimant to be eligible for compensation under 38 U.S.C. § 1151 due to VA treatment, the evidence must establish that he sustained additional disability and that this additional disability is etiologically linked to the VA treatment by the appropriate standard under 38 U.S.C. § 1151. If there is no competent evidence of additional disability or no evidence of a nexus between the hospitalization, medical or surgical treatment, or examination and the additional disability or death of the veteran, the claim for compensation under 38 U.S.C. § 1151 must be denied.

In determining whether a veteran has an additional disability, VA compares the veteran’s condition immediately before the beginning of the hospital care or medical or surgical treatment upon which the claim is based to the veteran’s condition after such care or treatment. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(b).

To establish causation, the evidence must show that the hospital care or medical or surgical treatment resulted in the veteran’s additional disability. Merely showing that a veteran received care or treatment and that the veteran has an additional disability does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care or medical or surgical treatment cannot cause the continuance or natural progress of a disease or injury for which the care or treatment was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). An additional disability or death caused by the veteran’s failure to follow medical instructions will not be deemed to be caused by hospital care, medical or surgical treatment or examination. 38 C.F.R. § 3.361(c)(3).

To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1).

Here, it is not found that the Veteran sustained additional disabilities for which § 1151 benefits are warranted.

VA treatment records show treatment for glaucoma. In an October 2002 VA progress note, the Veteran reported that in 1975 he was drinking heavy
or examination proximately caused a veteran’s additional disability or death, it must be shown that the hospital care or medical or surgical treatment caused the veteran’s additional disability or death; and either (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care or medical or surgical treatment without the veteran’s informed consent. 38 C.F.R. § 3.361(d)(1).

Here, it is not found that the Veteran sustained additional disabilities for which § 1151 benefits are warranted.

VA treatment records show treatment for glaucoma. In an October 2002 VA progress note, the Veteran reported that in 1975 he was drinking heavy and had high blood pressure. He was told he has some bleeding in the back of his right eye at that time. The Veteran got his blood pressure down and went into rehabilitation. After a physical examination, the examiner noted old CRV occlusion in the right eye. In a February 2010 note, the Veteran was seen to be established as a patient. The examiner noted a diagnosis of glaucoma. In an April 2010 VA progress note, the Veteran reported he was diagnosed with glaucoma in 2006 in North Dakota, but he records were lost in transition to Texas. He also reported a family history of glaucoma. He stated he was on drops, but ran out in October 2009. In a March 2014 VA progress note, the Veteran reported his right eye is completely blind. It reportedly started in 2008 in Texas and he stated that VA never treated his glaucoma, so he went completely blind in that eye.

VA obtained an opinion in February 2017. The examiner noted the earliest encounter within the VA system that Veteran had received in regard to above claim was in April 2010 ophthalmology service from VA San Antonio. Veteran had diagnosis of "...CRVO OD of unknown time with media opacity (cataract)..." CRVO is Central Retinal Vein Occlusion or claimed disability of blindness, due to retinal vein occlusion. Veteran’s fundoscopic and macular examinations were annotated and consistent with this diagnosis of CRVO. His subsequent VA treatment follow up were reviewed from Fresno and Phoenix were consistent with his ongoing treatment for blindness of the right eye due to retinal vein occlusion. Enucleation had been entertained by Fresno and Phoenix VAMC, but his eyes declined. Veteran had elevated intraocular pressure as outlined in a VA optometry note dated in October 2016. This revealed chronically elevated intraocular pressure and treatment was rendered. Thus, the claimed disability of blindness, right eye due to retinal vein occlusion as caused by or became worse as a result of the VA treatment at issue is not resulted from carelessness, negligence, lack of skill, or similar incidence of fault on the part of the attending VA personnel; resulted from an event that could not have reasonably been foreseen by a reasonable healthcare provider; no failure on the part of VA to timely diagnose and/or properly treat the claimed disease or disability allowed the disease or disability to continue to progress. The rationale is that Veteran presented already with the condition upon arrival to VA. His disease progression was natural progression (or regression) upon presentation to current time. The retinal vein was already occluded and remains occluded. Thus, presentation of blindness is expectant.

In contrast, the Veteran posits that negligent VA treatment contributed to a worsening of his existing conditions. However, he lacks the medical expertise to provide a competent opinion on medical matters, including the source of his chronic and worsening pain. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Rather, the July 2019 VA opinions are more probative evidence in this case. Importantly, these opinions were based upon a detailed assessment of the Veteran’s current disorders, their natural and expected progression, and the observable impact of his VA treatment. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the factually accurate, fully articulated, sound reasoning for the conclusion). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing her opinions; rather, her assessments remained intact over the span of several years and
assessment of the Veteran’s current disorders, their natural and expected progression, and the observable impact of his VA treatment. See Prejean v. West, 13 Vet. App. 444, 448-49 (2000); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (holding that the probative value of a medical opinion comes from the factually accurate, fully articulated, sound reasoning for the conclusion). There is no indication that the examiner was not fully aware of the Veteran’s past medical history or misstated any relevant fact in providing her opinions; rather, her assessments remained intact over the span of several years and the noted consideration of additional evidence. Moreover, the examiner possesses the requisite expertise to render competent medical opinions regarding the progression of the Veteran’s conditions and had sufficient facts and data on which to base her conclusions.

Thus, it is found that any worsening of the Veteran’s existing right eye disorders, including additional loss of vision, was due to their natural progression and was neither caused nor aggravated by VA treatment. Accordingly, it is not found that he demonstrates additional disabilities, to include loss of vision, per applicable regulations.

Absent a finding of additional disabilities, inquiry into the negligence requirement is hereby rendered moot.

Considering the above, it is not found that the Veteran sustained additional disabilities for which § 1151 benefits are warranted. Therefore, the preponderance of the evidence is against the appeals, the benefit-of-the-doubt rule is not for application, and entitlement to compensation under the provisions of 38 U.S.C. § 1151 for right eye disorders is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990).

Effective Date

4. PTSD

Generally, the effective date for the grant of service connection based upon an original claim, a claim reopened after final disallowance, or a claim for increase is either the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise it will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(b)(1); 38 C.F.R. § 3.400(b).

A claim is a formal or informal communication, in writing, requesting a determination of entitlement or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). VA amended its regulations on March 24, 2015 to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). As discussed below, the claim here was properly filed on a standard form.

Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris, may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155 ; Norris v. West, 12 Vet. App. 413 (1999).

The Veteran separated from service in 1963. A claim for service connection for a psychiatric disability was not received within one year of date of discharge. The record shows that the Veteran filed an original claim of service connection for a psychiatric disorder, described as “mental health conditions” on July 20, 2014. The RO denied service connection in March 2015. The Veteran appealed this decision in May 2015 and filed a claim for PTSD in July 2016.

The RO granted a 50 percent rating for PTSD, effective on July 20, 2016, the date of the claim for PTSD. In June 2017, the RO granted an earlier effective date of July 20, 2014. There were no earlier claims received prior to the Veteran’s July 2014 claim for
not received within one year of date of discharge. The record shows that the Veteran filed an original claim of service connection for a psychiatric disorder, described as “mental health conditions” on July 20, 2014. The RO denied service connection in March 2015. The Veteran appealed this decision in May 2015 and filed a claim for PTSD in July 2016.

The RO granted a 50 percent rating for PTSD, effective on July 20, 2016, the date of the claim for PTSD. In June 2017, the RO granted an earlier effective date of July 20, 2014. There were no earlier claims received prior to the Veteran’s July 2014 claim for a psychiatric disorder. Moreover, as he separated from service in January 1069 and submitted the current claim over a year later, he is not entitled to an effective date within one year of discharge from service.

A review of the record shows that the Veteran had a positive screen for depression on February 2010, and was diagnosed with anxiety, depression, and rule out PTSD in June 2016.

As noted above, review of the record reveals no other communication that may reasonably be construed as a formal or informal claim for service connection for PTSD until the July 30, 2014, claim.

Increased Rating

5. PTSD

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities.

Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Acquired psychiatric disorders, including PTSD, are evaluated under a General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, 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 occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. See 38 C.F.R. § 4.130.

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 work-like setting); inability to establish and maintain effective relationships. Id.

A 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id.

The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In an August 2016 private Disability Benefits Questionnaire (DBQ), the examiner found the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas. He reported he has been married since 1957, but he is socially isolated and withdrawn and he has assistance performing his daily living tasks. His wife does shopping, household chores, manages finances, and prepares meals. His longest job was nursing for six years and his last job was regional truck driver until 2006. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationship, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene. Upon mental status evaluation, the Veteran’s attention was normal, and concentration appeared variable. He struggled remembering basic information. Thought content was appropriate for the circumstances for this day. There was no report of overt hallucinations. His judgement was average. Mood was anxious and nervous, affect was restricted. The Veteran reported that his physical conditions impact his mood; low energy, low motivation, social isolation and withdrawal, more irritability than in the past, unable to drive and feels imprisoned in his own home and feels hopeless and helpless that his medical conditions will improve.

During a November 2016 VA examination, the examiner reported the Veteran’s PTSD is manifested by occupational and social impairment with reduced reliability and productivity. The Veteran endorsed symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mile memory loss, and flattened affect. The examiner noted the Veteran was appropriately groomed and dressed. His speech was normal in rate and tone. His mood was very dysphoric with restricted affect. This thought process was logical and goal directed. He denied hallucinations and did not appear to be responding to internal stimuli. He denied suicidal and homicidal ideation. His judgment and insight were fair. The Veteran stated he sleeps about four hours and if he sleeps longer, he has nightmares which wake him up.

VA progress notes are consistent with the VA and private examinations reports of records. In a June 2016 VA progress note, the Veteran complained of nightmares, he also reported hypervigilance, avoidance, easily irritated, hyperalert, and emotionally detached since his military service. He acknowledged some depression, anhedonia, irritability, poor sleep, and concentration problems. He attributed these to limitation imposed on his since he lost his sight in his right eye. He stated he abused alcohol until 1987. He has been married since 1958 and used to do a religious ministry in prisons. He was dressed casually and appropriately with appropriate hygiene and grooming. He had anxious and depressed mood, congruent affect, normal speech, normal attention/concentration, normal motor activity, logical and linear thought process. His memory was within normal limits, insight was fair to good, and he denied current suicidal or homicidal ideation. He reported he had attempted suicide when he was drinking. The Veteran reported he drank heavily until 1987 when he got sober. He worked steady but suffered these symptoms. The examiner noted that irritability and frustration worse now that he is disabled due to legal blindness in right eye.

The Board finds that a 70 percent evaluation, but no higher, is warranted throughout the appeal period. The August 2016 private DBQ found the Veteran’s PTSD is manifested by occupational and social impairment with deficiencies in most areas warranting a 70 percent disability rating.

The Board finds that a 100 percent evaluation is not warranted at any point during the appeal as the evidence does not show that the Veteran’s PTSD manifested in total occupational and social impairment at any point during the appeal period.

The Board notes that although the Veteran did report impairment in concentration and memory, the evidence does not show that the Veteran had symptoms as severe as gross impairment in thought processes or communication, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Veteran was oriented, alert, and appropriately groomed at the VA examination during the appeal period. Treatment records generally note him to be cooperative and socially appropriate.

Socially, the Veteran has reported being socially withdrawn. However, the Veteran was also married for more than 50 years and has close relationships with his children. Thus, the record does not suggest
PTSD manifested in total occupational and social impairment at any point during the appeal period.

Occupationally, the Veteran has been unemployed throughout the period on appeal, but the record suggests his status is not due entirely to his PTSD symptoms.

Overall, the Board finds that the Veteran’s functional impairment and the nature and severity of his symptoms, as he himself has described them, do not more closely approximate the criteria for a 100 percent rating.

Based on the forgoing, the Board finds that a 70 percent evaluation, but no higher, for the Veteran’s PTSD is warranted throughout the entire appeal period. See 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411.

6. TDIU

VA regulations allow for the assignment of a total disability rating based on individual unemployability (TDIU) when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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). Even if service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director of the VA Compensation and Pension Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b).

As of July 2014, and with this decision, the Veteran had a 70 percent rating for PTSD, a 60 percent for hemigastrectomy with vagotomy, 10 percent rating for tinnitus, 10 percent rating for vertigo, and noncompensable ratings for scars and hearing loss, for a combined rating of 80 percent. Therefore, the Veteran meets the schedular rating criteria for TDIU.

The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to his or her level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In reaching a determination of TDIU, it is necessary that the record reflect some factor that takes his case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15 (2012); Van Hoose, 4 Vet. App. 361. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

In an April 2013 statement, Dr. B. stated the Veteran’s medical records document his right eye is totally blind secondary to glaucoma. He reported he was last able to work in 2006. He is unable to drive and depends on VA transportation to get to and from medical opinions. It was his opinion that based on his age, service-connected disabilities, blindness, and inability to drive that he is unable to successfully compete, obtain, or maintain gainful employment now or anytime in the future.

In an August
the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994).

In an August 2016 private DBQ, the examiner found the Veteran cannot sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. Additionally, the hemigastrectomy with vagotomy, tinnitus, and bilateral hearing loss, in turn, continue to manifest as depressive disorder.

In a September 2016 statement, Dr. S. indicated that the Veteran’s tinnitus associated with vertigo causes daily problems with focus and concentration. He would not be able to maintain employment due to his physical limitations and his need for frequent unscheduled breaks and absences from the workplace resulting from vertigo and tinnitus.

(Continued on the next page)

In a November 2019 private vocational assessment, the examiner found the Veteran would not have been capable of performing his prior work as a nurse, which is medium and skilled in nature, or his past work as a truck driver, which medium and semi-skilled in nature. He is had significant physical limitations that prevented sustained a full-time workday and would not have allowed him to meet the physical requirement of the past work. He has emotional imitation which would prevent sustaining semi-skilled and skilled work duties consistent with his prior work. He would be unable to mental or emotionally preform the required essential duties on a consistent basis. For the same limitations, he would have been unable to perform other work. He cannot perform sitting, standing, or walking for any significant sustained time. He was unable to lift in the performance of work tasks. He cannot sustain even sedentary work physically. Emotionally, he has problems with stress tolerance, concentration, emotional stability, and sustaining even simple work tasks of a repetitive unskilled nature. The Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected disabilities.

Giving the Veteran the benefit of the doubt, the Board finds that he is entitled to TDIU.

Matthew Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board D. M. Donahue Boushehri

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.

Analyze in VA Law Explorer