Citation Nr: 1754198
Decision Date: 11/28/17 Archive Date: 12/07/17

DOCKET NO. 13-13 888 ) DATE
)
)

On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California

THE ISSUES

1. Entitlement to service connection for bilateral upper extremity peripheral neuropathy, to include as secondary to diabetes mellitus type 2 (diabetes) and as due to herbicide exposure.

2. Entitlement to service connection for bilateral lower extremity peripheral neuropathy, to include as secondary to diabetes and as due to herbicide exposure.

3. Entitlement to an initial disability rating in excess of 50 percent prior to January 12, 2017, and in excess of 70 percent thereafter, for posttraumatic stress disorder (PTSD).

4. Entitlement to a total disability rating based on individual unemployability (TDIU).

5. Whether the reduction in the disability rating of diabetes from 20 percent disabling to 10 percent disabling, effective April 1, 2017, was proper.

REPRESENTATION

Veteran represented by: J. Michael Woods, Esq.

WITNESS AT HEARING ON APPEAL

The Veteran

ATTORNEY FOR THE BOARD

N.S. Pettine, Associate Counsel

INTRODUCTION

The Veteran served on active duty from October 1968 to July 1977, including service in the Republic of Vietnam from March 1969 to March 1970.

This matter is before the Board of Veterans’ Appeals (Board) on appeal from March 2009, March 2014, and March 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California, as well as a July 2011 rating decision by the San Diego, California RO. The Veteran’s claims file is now in the jurisdiction of the Oakland RO.

In September 2016 the Veteran testified at a video conference hearing before the undersigned. A transcript of the hearing is of record.

In April 2017, the Board reopened claims for entitlement to service connection for bilateral hearing loss and tinnitus. The Board then granted the Veteran’s tinnitus claim and denied the Veteran’s claims for entitlement to service connection for a heart condition and for an abnormal sperm count. Lastly, the Board remanded the claims of entitlement to service connection for bilateral hearing loss, entitlement to service connection for bilateral upper and lower extremity peripheral neuropathy, entitlement to an initial disability rating in excess of 50 percent for PTSD, and entitlement to a TDIU for further development.

Then, via an August 2017 rating decision, the Agency of Original Jurisdiction (AOJ), granted the Veteran’s claim for service connection for bilateral hearing loss. As such, that claim is considered to be resolved and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning “downstream” issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200 (2017).

Additionally, in the August 2017 rating decision, the AOJ increased the Veteran’s disability rating for PTSD from 50 percent to 70 percent, effective January 12, 2017. But, as that increase did not constitute a full grant of the benefit sought for the entire appeal period, the increased rating issue remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993).

The case is now again before the Board for appellate review. The Board finds that there has been substantial compliance with its April 2017 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999).

VETERAN’S CONTENTIONS

The Veteran contends that he currently has peripheral neuropathy of the bilateral upper and lower extremities-claimed or described as tingling, numbness, shooting pains, and loss of sensation-that he believes is related to his service-connected diabetes mellitus or his exposure to herbicides while serving in Vietnam from March 1969 to March 1970.

In regard to his PTSD increased rating claim, the Veteran states that he is entitled to at least a 70 percent rating for the entirety of the claim period. In his July 2014 substantive appeal, the Veteran discussed symptoms of suicidal ideation, anger management problems, ritualistic and obsessional behavior, a fear of crowds and of enclosed spaces, illogical speech, an inability to engage in social and occupational settings, a distrust of authority, weekly panic attacks, impaired impulse control, depression, having very few friends, and neglect of personal appearance and hygiene. The Veteran maintains that a combination symptoms attributable to PTSD, diabetes, peripheral neuropathy, and a non-service-connected heart condition preclude him from obtaining and maintaining any form of gainful employment.

Lastly, the Veteran contends that a reduction in the disability rating of his diabetes mellitus was improper as it is more severe than the current 10 percent rating captures.

FINDINGS OF FACT

1. In August 2006, an electromyogram (EMG) administered by Dr. Khalili, a private clinician, revealed the presence of bilateral median neuropathy at the Veteran’s wrists consistent with carpal tunnel syndrome. Additionally, the EMG revealed the presence of L4-5 lumbosacral polyradiculopathy bilaterally. The Veteran is not service-connected for any condition of the lumbosacral spine.

2. In April 2007, the Veteran sought treatment from a VA provider for diffuse pain. A neurological work-up was entirely negative aside from carpal tunnel syndrome and radiculopathy. The clinician opined that the major components of the Veteran’s pain were a combination of osteoarthritis, occult obstructive sleep apnea, and myofascial pain syndrome.

3. In May 2009, Dr. Marquardt, another private clinician, commented that the Veteran had peripheral neuropathy that was directly attributable to the Veteran’s diabetes mellitus. However, Dr. Marquardt provided no rationale or explanation for his opinion.

4. During an April 2009 VA diabetes examination, the Veteran stated that he had chronic pain in his feet since 2007. But, the Veteran denied any numbness, tingling, or burning sensation in his feet. After examining the Veteran, the examiner did not diagnose the Veteran with peripheral neuropathy attributable to diabetes.

5. In July 2009, Dr. Waterbury, a private clinician, opined that the Veteran currently had peripheral neuropathy that was attributable to herbicides the Veteran was exposed to in Vietnam. But, similar to Dr. Marquardt in May 2009, Dr. Waterbury provided no rationale or explanation for this opinion.

6. During an April 2013 VA examination for diabetes, the Veteran reported a long history of numbness and tingling in his extremities since the 1980s. The examiner noted that the Veteran had been diagnosed with carpal tunnel syndrome and aural nerve disease by non-VA providers and commented that this could not be caused by diabetes. After conducting a neurologic evaluation, the examiner stated that the Veteran did not have evidence of classic stocking glove hypesthesia associated with diabetes. Instead, the Veteran had random sensory loss in the hands and feet. Due to these findings and a review of the Veteran’s record, the examiner concluded that the Veteran did not have peripheral neuropathy attributable to diabetes.

7. In June 2017, the Veteran was afforded a VA peripheral nerves examination where he was diagnosed again with carpal tunnel syndrome. After examining the Veteran, the examiner opined that the Veteran’s carpal tunnel syndrome was less likely than not related to service. The examiner further opined that it was evident that the Veteran did not have any upper or lower bilateral peripheral neuropathy (1) that could be caused by the exposure to herbicides in Vietnam, or (2) that could be characterized as early-onset peripheral neuropathy associated with herbicide exposure. In support of this determination, the examiner thoroughly reviewed and discussed the Veteran’s entire claims file and referred to recent medical literature.

8. In June 2011, a social worker from the Sacramento, California Vet Center reported that the Vet displayed the following mental health symptoms: anger, hypervigilance, flashbacks, panic attacks, anxiety depression, survivor’s guilt avoidance of thought and activities associated with traumatic events, diminished interest in activities, feelings of detachment from others, restricted range of affect, difficulty in falling and staying asleep, and difficulty with concentration and memory. The social worker then stated that the Veteran was having problems with his activities of daily living and with dealing with family members and the community at large.

9. During another February 2014 VA examination, the Veteran was diagnosed with PTSD and reported that he generally did not have any contact with most of his family. He stated that he only had a few friends and that he occasionally went out to lunch with them. The examiner recorded the presence of the following PTSD symptoms: depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and suicidal ideation. The Veteran elaborated that he thought of suicide weekly and that he came close to attempting but stopped himself.

10. In March 2014, Dr. Thomson, a private clinician, evaluated the Veteran for PTSD. During the evaluation, the Veteran reported that he liked to be alone and found it hard to communicate. The Veteran stated that he argued often about any topic and that he could not walk down the street with someone behind him. The Veteran said that he tried to sit with his back to the wall in restaurants and that he heard voices mumbling in his ears. The Veteran reported having nightmares when asleep and that he had caught himself hitting his wife on her arm, stomach, and back when awakening. After conducting the evaluation, Dr. Thomson stated that the Veteran had a genuine diagnosis of PTSD and noted additional symptoms of suicidal thoughts.

11. In his July 2014 substantive appeal, the Veteran discussed symptoms of suicidal ideation, anger management problems, ritualistic and obsessional behavior, a fear of crowds and of enclosed spaces, illogical speech, an inability to engage in social and occupational settings, a distrust of authority, weekly panic attacks, impaired impulse control, depression, having very few friends, and neglect of personal appearance and hygiene.

12. During the September 2016 Board hearing, the Veteran testified that on an average day he: (1) tried to go to the gym to exercise; (2) made a list of household chores; (3) glanced at the newspaper; and (4) watched television. The Veteran reported that he frequently had arguments with his wife and that, when he was working, he often got into arguments with co-workers. The Veteran stated that his concentration and memory were poor. The Veteran also testified that he went about once or twice a month to anger management classes.

13. In January 2017, during another VA PTSD examination, the Veteran again reported that he did not do much on a typical day. He stated that he may go to the gym or run an errand, but that he typically just watched television. The Veteran reported that he rarely socialized, with the exception of occasionally going to a car show. The examiner noted that the Veteran received treatment about once a month and had completed an anger management program. After evaluating the Veteran, the examiner recorded the presence of the following PTSD symptoms: depressed mood; anxiety; 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 neglect of personal appearance and hygiene. The examiner remarked that the Veteran’s state during the examination was apparently not as severe compared to what was reported in the July 2014 substantive appeal.

14. Throughout the entirety of the appeal period, the Veteran has not demonstrated gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for names of close relatives, his own occupation, or his own name.

15. The Veteran ceased working in May 2006. The probative evidence of record shows that since then, the Veteran’s service-connected PTSD and diabetes has not precluded him from obtaining or maintaining substantially gainful employment.

16. In May 2009, the RO granted service connection for diabetes and assigned a disability rating of 20 percent, effective May 15, 2008.

17. In November 2016, the Veteran filed a claim for entitlement to a TDIU, to include on the basis of diabetes. The RO reviewed the current nature of the Veteran’s diabetes in connection with this claim.

18. In January 2017, the Veteran was afforded a VA diabetes examination. During the examination, the examiner stated that the Veteran’s condition was managed by a restricted diet. The examiner noted that there was no regulation of activities and stated that the Veteran currently required no medications for diabetes.

19. Via a March 2017 rating decision, the RO reduced the Veteran’s disability rating for diabetes from 20 percent to 10 percent. Prior to this rating decision, the RO did not notify the Veteran that it was proposing a reduction in his disability rating.

20. At the time of the reduction, the Veteran’s rating had been in effect for more than 5 years.

21. The evidence of record demonstrates that the Veteran’s diabetes sustained material improvement under the ordinary conditions of life at the time it was reduced by the RO.

22. The reduction in the Veteran’s disability rating for diabetes did not result in a reduction or discontinuance of the Veteran’s compensation payments.

CONCLUSIONS OF LAW

1. The criteria for service connection for bilateral upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).

2. The criteria for service connection for bilateral lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b) (2012); 38 C.F.R §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017).

3. The criteria for an initial disability rating of 70 percent, but no higher, have been met for the entire claim period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9411 (2017).

4. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017).

5. The criteria for restoration of a 20 percent rating for diabetes have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.105, 3.344, 4.2, 4.10, 4.119, Diagnostic Code 7913 (2017); Tatum v. Shinseki, 24 Vet. App. 139 (2010).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection Claims

As indicated above, the Board finds that the Veteran is not entitled to service connection for bilateral upper and lower extremity peripheral neuropathy, to include as due to diabetes and as due to herbicide exposure. In making this determination, the Board is cognizant of its statement in its April 2017 remand directives that the Veteran currently suffered from a disability. Indeed, as indicated above in the Findings of Fact section, the Veteran currently has carpal tunnel syndrome affecting both of his upper extremities and radiculopathy affecting both of his lower extremities.

However, the Board finds that there is no nexus linking the Veteran’s conditions to his service-connected diabetes. Additionally, pursuant to the June 2017 VA examiner’s opinion, the Veteran’s current conditions could not be characterized as early-onset peripheral neuropathy associated with herbicide exposure.

Further, the record is devoid of a competent, probative medical opinion linking the Veteran’s conditions to diabetes. In forming this conclusion, the Board is cognizant of Dr. Marquardt’s May 2009 and Dr. Waterbury’s July 2009 opinion linking the Veteran’s conditions to diabetes and herbicide exposure. However, as previously indicated in the Board’s April 2017 remand, these opinions are inadequate as they contain no rationale or explanation for their conclusions.

In light of the above, the preponderance of the evidence is against granting service connection for peripheral neuropathy of the bilateral upper and lower extremities. Accordingly, the Veteran’s claims are denied; there is no doubt to be resolved. See 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310.

Increased Initial Rating for PTSD

As provided above, the Board finds that the Veteran is entitled to a 70 percent disability rating for PTSD for the entirety of the claim period. In making this determination, the Board finds that the Veteran has displayed: suicidal ideation; an inability to establish and maintain effective relationships; difficulty in adapting to stressful circumstances; impaired impulse control; and occasional neglect of personal appearance and hygiene. These symptoms have been present throughout the entirety of the claim period-including prior to January 12, 2017. Indeed, the January 2017 VA examiner remarked upon the similarity of symptoms between those noted during the examination and those symptoms reported in the July 2014 substantive appeal. Accordingly, to this extent, the Veteran’s claim is granted.

However, the Board also finds that the Veteran is not entitled to a rating of 100 percent during any time of the claim period. In addressing why a rating of 100 percent is not warranted, the Board finds that the Veteran has not displayed symptoms indicative of total occupational and social impairment. For example, the Veteran has not displayed: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene; disorientation to time or place; or memory loss for names of close relatives, his own occupation, or his own name.

In making this determination, the Board acknowledges that the Veteran reported auditory hallucinations during a March 2014 evaluation with Dr. Thomson. However, this appears to be an isolated occurrence as the other relevant evidence of record is devoid of any description of auditory hallucinations. Further, even if the Veteran’s report of auditory hallucinations are characterized as “persistent” within the context of the rating criteria for a 100 percent rating, the Board notes that the existence of just one symptom within the 100 percent criteria does not cause the severity of Veteran’s disability to be considered as 100 percent disabling. Rather, in adjudicating the present claim, the Board must consider the totality of the Veteran’s array of symptomology. See Mauerhan v. Principi, 16 Vet. App. 436, 443-44 (2002).

In short, based on the evidence and analysis above, the Board finds that the criteria for a rating of 70 percent, but no higher, for PTSD are met for the entire period under review. Accordingly, the Veteran’s claim is granted in part and denied in part.

TDIU

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). Therefore, in adjudicating a TDIU claim, the Board must take into account the Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). However, the Board may not take into account the Veteran’s age or any impairment caused by nonservice-connected disabilities in determining whether TDIU is warranted. See 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19.

In order to be entitled to a TDIU, the schedular rating must be less than total and the evidence must show that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one disability serving as the basis for a TDIU, that disability must be ratable at 60 percent or more. If there are 2 or more disabilities, one disability must be rated at 40 percent or more and there must be sufficient additional disability to bring the combined rating to 70 percent.

Currently, the Veteran’s combined disability rating is 80 percent. See 38 C.F.R. § 4.25. Further, the Veteran is in receipt of a 70 percent disability rating for PTSD. As such, he meets the schedular requirements for a TDIU.

The Veteran has claimed that his PTSD, by itself or in combination with diabetes, precluded him from securing and maintaining substantial employment since May 2006. However, the Board finds that a preponderance of the evidence is against the claim.

The evidence of record indicates that the Veteran has 2 to 3 years of college education and that he had previously worked as a helicopter crew chief. Additionally, the Veteran had been employed by an aircraft company and the Union Oil Company Chemical Division. Lastly, the Veteran also worked as a senior field technician helping with groundwater treatment.

During the June 2017 VA peripheral nerves examination, the examiner commented that the Veteran’s diagnosed carpal tunnel syndrome prevented the Veteran from performing manual labor, but did not prevent him from performing limited sedentary labor. However, as discussed above, the Veteran is not service connected for peripheral neuropathy of the bilateral upper extremities.

Next, during the January 2017 VA PTSD examination, the Veteran stated that he last worked at McClellan Air Force Base cleaning up groundwater. The Veteran stated that he stopped working because he had excruciating pain all over his body. Additionally, the Veteran stated that he had not attempted to work because of heart conditions. The Veteran also is not currently service connected for a heart condition.

Similarly, employment information received in December 2016 indicated that the Veteran stopped working as a senior field technician due to cardiomyopathy and musculoskeletal or chronic pain syndrome. PTSD symptoms were not mentioned as a cause for discontinuation of employment. Likewise, during the February 2014 VA PTSD examination, the Veteran stated that he stopped working due to heart problems.

In sum, the evidence of record indicates that the Veteran has not been precluded from obtaining and maintaining a substantially gainful occupation due to his service-connected PTSD or diabetes. Rather, the evidence demonstrates that his inability to work was due to non-service-connected disabilities-which the Board may not consider in determining whether to grant a TDIU claim. Accordingly, the Veteran’s claim is denied.

Rating Reduction for Diabetes

Lastly, as indicated above, the Board finds that the rating reduction from 20 percent to 10 percent for service-connected diabetes, effective April 1, 2017, was proper. In support of this conclusion, the Board initially notes that at first blush, the AOJ did not comply with the due process requirements for a reduction in compensation outlined in 38 C.F.R. § 3.105(e). This regulation requires VA to send the Veteran notice of a proposed reduction, stating all material facts and reasons, prior to the reduction’s enactment. However, the Court of Appeals for Veterans Claims stated in Tatum v. Shinseki that the plain meaning of 38 C.F.R. § 3.105(e) indicates that “notice is warranted only when there is a reduction in compensation payments currently being made.” 24 Vet. App. 139, 143 (2010) (citing O’Connell v. Nicholson, 21 Vet. App. 89 (2008) (internal quotation marks omitted).

In this case, a reduction in the diabetes disability rating from 20 percent to 10 percent, effective April 1, 2017, does not affect the Veteran’s combined disability rating. Regardless of whether the Veteran is assigned a 20 or 10 percent disability for diabetes, his combined disability rating remains at 80 percent. See 38 C.F.R. § 4.25. As such, the RO was not required to send a proposal prior to the reduction.

Next, as indicated previously, the Veteran’s 20 percent diabetes rating was in effect for 5 years at the time of the reduction. In that regard, 38 C.F.R. § 3.344 provides that, to reduce a rating in effect for 5 years or more, the evidence must show sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations.

To determine whether the reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Cf. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992).

In this case, the Veteran’s diabetes are rated under 38 C.F.R. § 4.119, Diagnostic Code 7913. Under that diagnostic code, a 10 percent rating is assigned when a veteran’s diabetes is manageable by restricted diet only. Comparatively, a 20 percent rating is assigned when a veteran’s diabetes requires insulin and a restricted diet, or when it requires an oral hypoglycemic agent and a restricted diet.

As indicated above in the Findings of Fact section, in January 2017, the Veteran was afforded a VA diabetes examination. During this examination, the examiner stated that the Veteran’s condition was managed by a restricted diet. The examiner noted that there was no regulation of activities and stated that the Veteran currently required no medications for diabetes. Pursuant to the findings of the January 2017 VA diabetes examination, the Veteran’s diabetes would only warrant the assignment of a 10 percent rating as it was only managed by a restricted diet.

When viewing the January 2017 VA diabetes examination report in conjunction with the other evidence of record, the Board finds that the rating reduction was proper as the Veteran’s diabetes demonstrated sustained material improvement under the ordinary conditions of life. Specifically, at the time of the reduction, the record was absent of any evidence that the Veteran used either insulin or an oral hypoglycemic agent in conjunction with a restricted diet to manage his diabetes. As such, the claim is denied.

ORDER

Entitlement to service connection for bilateral upper extremity peripheral neuropathy is denied.

Entitlement to service connection for bilateral lower extremity peripheral neuropathy is denied.

Entitlement to an initial disability rating of 70 percent, but no higher, for PTSD is granted for the entire claim period.

Entitlement to a TDIU is denied.

The rating reduction for the Veteran’s service-connected diabetes, from 20 percent to 10 percent, effective April 1, 2017, was proper.

____________________________________________
S.C. KREMBS
Veterans Law Judge, Board of Veterans’ Appeals

Department of Veterans Affairs

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