Citation Nr: 1826540	
Decision Date: 05/03/18    Archive Date: 05/14/18

DOCKET NO.  14-31 620A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in New Orleans, Louisiana


THE ISSUES

1.  Entitlement to an initial rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depression and anxiety, presently diagnosed as persistent depressive disorder. 

2.  Entitlement to an initial rating in excess of 10 percent for groin adenopathy with cutaneous nerve involvement, right leg.

3.  Entitlement to an initial compensable rating for scar, residuals of groin adenopathy, right leg. 

4.  Entitlement to service connection for sleep apnea. 

5.  Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU).



ATTORNEY FOR THE BOARD

K. Vuong, Associate Counsel


INTRODUCTION

The Veteran served on active duty from April 1973 to April 1993.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from April 2012 and July 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana.  

In the April 2012 rating decision, service connection was granted for PTSD with a 50 percent evaluation, effective June 6, 2010, and for right leg scar with a non-compensable evaluation, effective July 14, 2010.  The July 2014 rating decision granted service connection for groin adenopathy with cutaneous nerve involvement, right leg with an evaluation of 10 percent, effective July 14, 2010. 

The issue of entitlement to a TDIU has been raised by the record.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

The issues of entitlement to service connection for sleep apnea and a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Resolving all reasonable doubt in the Veteran's favor, since the grant of service connection his PTSD with depression and anxiety, presently diagnosed as persistent depressive disorder, has manifested with symptomatology that causes deficiencies in most areas to include work, family relations, judgment, thinking, and mood.

2.  The Veteran's groin adenopathy with cutaneous nerve involvement, right leg resulted in mild, incomplete paralysis with intermittent pain, numbness, and tingling.

3.  Prior to December 10, 2015, the Veteran's right leg scar was superficial, but not painful, unstable, or measured at least 144 square inches and it did not cause any functional limitations.

4.  From December 10, 2015, the Veteran's right leg scar was tender to palpation. 


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating of 70 percent, and no higher, for PTSD with depression and anxiety, presently diagnosed as persistent depressive disorder, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code (DC) 9411 (2017).

2.  The criteria for an initial disability rating of higher than 10 percent for groin adenopathy with cutaneous nerve involvement, right leg have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.124a, DCs 8526 (2017).

3.  Prior to December 10, 2015, the criteria for an initial compensable rating for scar, residuals of groin adenopathy, right leg, have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, DC 7805 (2017).

4.  Beginning December 10, 2015, the criteria for an initial 10 percent rating, but no higher, for scar, residuals of groin adenopathy, right leg, have been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.118, DC 7805 (2017).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7 (2017).   

In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The assignment of staged ratings is also appropriate.  See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  Layno v. Brown, 6 Vet. App. 465, 470 (1994).

A. PTSD

The Veteran seeks a higher initial rating for his PTSD with depression and anxiety, which is currently rated 50 percent under 38 C.F.R. § 4.130, DC 9411.  

The Veteran reports that his symptoms have affected his employment due to anger and depression.  See March 2016 Form 9.  The Veteran further reports anger outbursts, as well as social isolation from friends and family.  See also October 2012 notice of disagreement.  

In an April 2011 mental examination, the Veteran reported serious difficulty with hostility and anger, inability to control extreme emotions, depression, crying profusely when sad, and chronic sleep impairment in addition to sleep apnea.  The Veteran also reported memory problems, and feeling anxious and depressed, and three prior suicide attempts.  The Veteran reported a good relationship with family members, and current employment unaffected by symptomatology.  The clinician noted moderate symptoms that occur daily and mild, intermittent impairment of thought process when angry or agitated.  The clinician further noted two prior suicide attempts with one episode of homicidal ideation where the Veteran attempted to choke a co-worker.  However, the clinician indicated that the Veteran does not currently pose an imminent threat.  The clinician gave a diagnosis of PTSD, major depression, and anxiety disorder.  The clinician indicated that symptoms of Axis I diagnoses cannot be separated.  The clinician endorsed symptomatology that included depression, anxiety, sleep impairment, memory problems, memory loss, and difficulty managing anger and other emotions.  Ultimately, the clinician concluded that symptoms are severe enough to interfere with occupational and social functioning.

In a May 2011 VA examination for PTSD, the Veteran was noted to have the same symptomatology recorded in the prior April 2011 examination.  Additionally, the Veteran reported frequent suicidal ideation when having problems with his marriage.  The Veteran also endorsed some obsessive or ritualistic behavior and daily, moderate depression.  There also was some impairment of thought processes and delusions.  The examiner gave a diagnosis of PTSD without any other Axis I diagnoses.  The examiner reasoned that the depression and anxiety symptoms are directly related to the primary diagnosis of PTSD and his inability to manage the symptoms of PTSD.  The examiner concluded that symptoms result in reduced reliability and productivity in social and familial relationships as the Veteran has serious difficulty in coping with emotions, suppressing and displacing these emotions. 

In November 2015 VA treatment records, the Veteran reported suicidal ideation, with feelings of isolation, frustration, and anger.  

In December 2015 VA treatment records, the Veteran reported living with his wife, son, and grandson.  The Veteran reported a very close relationship with his grandson.  The Veteran was noted to be agitated about his former job with depressed mood.  The Veteran was also noted to have intact thought processes.  The Veteran denied suicidal and homicidal thoughts, hallucinations and delusions.  

In December 2015, the Veteran was afforded another VA examination related to PTSD.  The Veteran was noted to have a historical diagnosis of PTSD and a current diagnosis of persistent depressive disorder with persistent major depressive episode.  The examiner noted that the Veteran is married and lives with wife, his youngest daughter, and grandson.  The Veteran reported a close relationship with his grandson.  The Veteran's symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, disturbances of motivation and mood, inability to establish and maintain effective relationships, suicidal ideation, and persistent danger of hurting self or others.  The Veteran also reported several symptoms of depression that onset in service including depressed mood for most of the day; diminished interest in activities, low energy, insomnia, feelings of worthlessness and guilt, and intermittent suicidal ideation.  The examiner gave a diagnosis of persistent depressive disorder with persistent major depressive episodes.  The examiner endorsed occupational and social impairment with occasional decrease in work efficiency.  

After reviewing the evidence, and resolving all reasonable doubt in favor of the Veteran, the Board finds that a rating of 70 percent is warranted since the grant of service connection.

The criteria for evaluating psychiatric disorders, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders.  See 38 C.F.R. § 4.130 (2017).  Symptoms indicative of a 70 percent rating include occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.  

The Veteran's disability has most nearly approximated occupational and social impairment with deficiencies in most areas due to symptoms such as chronic sleep impairment, social isolation, depression, and difficulty with concentration, serious difficulty with anger and irritability, and suicidal ideation.  The competent and probative medical evidence include the April 2011 mental examination.  The Veteran was noted to have suicidal ideation, homicidal ideation, serious difficulty with anger and extreme emotion, and impairment of thought process when angry or agitated.  This is consistent with other VA examinations which evidence a similar symptomatology.  Moreover, the Veteran is competent to report that the symptoms, including difficulty with anger and depression, resulted in some occupational impairment.  The Veteran has also competently reported deficiencies in most areas, such as work, judgment, thinking, and mood.  For these reasons, an initial 70 percent rating is assigned.  A higher rating of 100 percent is not warranted.  

A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130 DC 9411 (2017).

A review of the claims file shows that the Veteran has intermittently reported suicide ideation.  The December 2015 VA examiner marked 'persistent danger of hurting oneself' on a checklist that noted symptoms of PTSD.  However, later in the report, the examiner noted that the Veteran had intermittent suicidal ideation without a specific plan, preparation or intent.  The examiner also indicated the severity of the Veteran's psychologic impairment was of moderate severity.  The Veteran has also at times been noted to have impairment of thought processes; however, he has not been observed to have any gross impairment, as contemplated by the 100 percent rating criteria.  Further, the Veteran is not shown to have disorientation as to time or place, persistent hallucinations, or grossly impaired communications.  

However, a cumulative review shows the Veteran's symptoms have not generally not risen to the level of severity or chronicity approximating total occupation and social impairment.  Indeed, the Veteran was able to maintain employment until retirement in December 2014, despite his PTSD difficulties.  At the April 2011 examination, he reported that his symptoms of impaired thought process, memory loss, obsessive behavior, depression, and anxiety had not affected his past work performance.  

Total social impairment is also not present.  The Veteran has shown the ability to maintain close social relationships with a number of individuals including his wife of many years, daughter, and his grandchildren.  In multiple VA examinations, the Veteran reported having an extremely close relationship with his grandson.  While the Veteran did report homicidal ideation at the 2011 VA examination, in that he attempted to choke a coworker; the cumulative record does not show that he is a persistent danger to others.  Further, he was able to remain employed until voluntary retirement three years later.  This does not support a finding that he was a persistent danger to others.

Significantly, the VA examiners (who have the requisite training and experience to evaluate symptomatology) have not endorsed a severity level approximating total occupational and social impairment.  For example, the December 2015 VA examiner indicated that the Veteran's level of occupational and social impairment was best described as occupational and social impairment with occasional decrease 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 Board notes that this level of impairment is actually contemplated by a 30 percent rating.  

As the Veteran's PTSD has not more nearly approximated total social and occupational impairment at any time during the appeal period, thus a 100 percent rating is not warranted.  Accordingly, the application of a staged rating is not warranted.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  


B. Groin Adenopathy

The Veteran seeks a rating in excess of 10 percent for groin adenopathy with cutaneous nerve involvement, right leg, currently rated under DC 8526.

DC 8526 provides the rating criteria for paralysis of the anterior crural (femoral) nerve.  DC 8526 provides that mild incomplete paralysis is rated as 10 percent disabling.  Moderate incomplete paralysis is rated as 20 percent disabling.  Severe incomplete paralysis is rated as 30 percent disabling.  Complete paralysis of the anterior crural nerve with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling.  38 C.F.R. § 4.124a. 

DC 8528 provides the rating criteria for paralysis of the obturator nerve.  Under this provision, mild or moderate paralysis warrants a noncompensable disability evaluation; and, severe to complete paralysis warrants a 10 percent disability evaluation.  38 C.F.R. § 4.124a.

The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.  The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor.  38 C.F.R. § 4.124a.

In a March 2011 VA examination regarding peripheral nerves, the Veteran reported tingling, numbness, and decreased sensation in the medial region of his right thigh.  The Veteran reported that the symptoms did not have an identifiable trigger, has a duration of four hours, occurred twice a month, and completely resolved after each episode.  Upon examination, the examiner noted normal right lower extremity motor function and control, including muscle strength and tone.  The examiner further indicated that right lower extremity sensory function was normal.  There was no impact from this condition on the Veteran's occupational and daily functioning.  The examiner noted that the Veteran was asymptomatic on examination, but the most likely nerve involved was the anterior femoral cutaneous nerve.

In an October 2012 notice of disagreement, the Veteran reported unpredictable tingling and numbness with degraded physical activity. 

The Veteran was afforded another VA peripheral nerve examination in December 2015.  The examiner conducted an in-person examination and review of the claims file.  The Veteran reported a nerve condition with stable course over the last 40 years.  The Veteran reported intermittent, moderate pain and numbness in the right lower extremity worsened by running.  Objective evaluation revealed decreased sensation in the thigh/knee (L3/4) area.  There was normal muscle strength and no trophic changes.  There was mild weakness of the thigh adductors due to obturator neuropathy.  An abnormal gait was noted as the Veteran had a slight limp on right as he tried to avoid sensitive inner right thigh from touching his clothes.  The examiner found mild, incomplete paralysis of the right obturator neuropathy.  All other nerves were normal.  The examiner clarified the diagnosis, noting the pertinent findings are in the distribution of the right obturator with medial thigh sensory deficit and weakness of thigh adductors.  Therefore, the Veteran's current diagnosis which has been chronic for years, more correctly involves the right obturator nerve and not the sciatic nerve as previously diagnosed.  With respect to functional impact, and although the Veteran was not working, he reported that his right leg becomes lazy if he is on his feet for longer than an hour.  

Based on the evidence presented, the Board finds that an initial evaluation in excess of 10 percent is not warranted.

This right leg disability has manifested with subjective complaints of mild intermittent pain, tingling, and numbness.  At the March 2011 VA examination, the Veteran was noted to have normal right lower extremity motor function and control, sensory function, muscle strength and tone.  There were subjective complaints only.  Objective testing in the December 2015 examination showed mild sensory deficit and weakness of the thigh adductor (L3/4).  Otherwise, the reflexes and muscle strength testing were clinically normal.  Moreover, the December 2015 examiner determined that the paralysis was incomplete and only of mild severity.  

As shown, this disability has manifested in primarily mild sensory changes.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  38 C.F.R. § 4.124a.  There also have been no findings of trophic changes, muscle atrophy or abnormal tone or bulk.  Moreover, no medical examiners have characterized the severity of this disability as moderate or moderately severe incomplete paralysis.  The Board is mindful of the fact that the December 2015 VA examiner indicated that the right obturator nerve, and not the sciatic nerve, is involved.  Mild or moderate paralysis obturator nerve warrants a noncompensable disability evaluation.  However, the Board will not disturb the 10 percent rating currently assigned under DC 8526.  Given the evidence, a rating in excess of 10 percent is not warranted at any time during the appeal period.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  There are no additional expressly or reasonably raised issues presented on the record. 

C. Scar, Residuals of Groin Adenopathy, of the Right Leg

The Veteran seeks a compensable rating for scar, residuals of groin adenopathy, of the right leg, currently rated under DC 7805.  

DC 7805 provides that scars should be evaluated pursuant to DCs 7800, 7801, 7802, and 7804 and adds that any disabling effect(s) not considered in those rating criteria should be evaluated under an appropriate code.  38 C.F.R. § 4.118, DC 7805 (2017).

Under DC 7804, one or two scars that are unstable or painful on examination warrant a 10 percent rating.  A 20 percent rating under DC 7804 requires three or four scars that are unstable or painful, and a 30 percent rating under DC 7804 five or more scars that are unstable or painful.  

Note (1) following DC 7804 provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) following DC 7804 provides that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars.  Note (3) following DC 7804 provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804 when applicable.  38 C.F.R. § 4.118, DC 7804. 

In a March 2011 VA examination, the examiner noted a scar which was well healed in the right patella.  The examiner was unable to provide specific measurements.  Upon examination, the examiner indicated that the scar was not painful; is superficial and without limitation of motion or function.  The examiner indicated that there was no inflammation, edema, or ketoid formation.

In December 2015, the Veteran was afforded another examination in relation to scars.  The examiner reviewed VA treatment records and gave a diagnosis of scar, residual of groin adenopathy, right leg.  The Veteran reports the right leg scar that is healed, without skin breakdown, and is occasionally tender to touch.  The examiner noted the scar was located at the right lower leg and above knee, lateral aspect.  The examiner indicated that the scar was superficial and nonlinear, with dimensions of 2.0 centimeters by .5 centimeters.  The examiner indicated the scar was not painful.  Ultimately, the examiner concluded the scar is healed, without breakdown of skin, but tender to palpation.  The examiner stated that the tender scar was an increase in the Veteran's diagnosis and the scar was currently mild in severity.

Based on the evidence presented, the Board finds that an initial 10 percent evaluation is warranted for the Veteran's scar, residual of groin adenopathy of the right leg but only beginning from December 10, 2015. 

The Veteran did not report any pain or tenderness related to the right lower leg scar prior to the December 2015 VA examination.  As shown, the March 2011 VA examiner indicated the scar was not painful.  There are no treatment records or lay statements from the Veteran which support pain or tenderness in the right lower leg scar.  It was not until the December 10, 2015 VA examination that he reported tenderness of the scar, which is reasonably equivalent to pain.  The Board notes that the Veteran is competent to report that the scar is painful.  See Layno v. Brown, 6 Vet. App. 465 (1994).  Moreover, the December 2015 VA examiner indicated that the scar was tender to palpation during the examination.  Accordingly, a rating of 10 percent is warranted but only from December 10, 2015. 

An even higher rating under DC 7804 requires at least three or more scars that are painful or unstable.  As the Veteran does not have at least three painful scars related to his right leg, a 20 percent rating is not warranted.  Furthermore, there is no evidence that scar is unstable.  See 38 C.F.R. §§ 4.7, 4.118, DC 7804.  

The Board has also considered whether other diagnostic codes could potentially afford the Veteran a higher rating at any time during the appeal.  The competent and credible evidence does not show that these scars involve the head, face, or neck (DC 7800), or that is deep and nonlinear with an area of 6 square inches or more (DC 7801).  While DC 7802 does not provide for a rating higher than 10 percent, the Veteran is also not shown to have a superficial nonlinear scar measuring 144 square inches or more.  See 38 C.F.R. §§ 4.7, 4.118, DCs 7800-7804.   

In sum, an initial compensable rating prior to December 10, 2015 is not warranted.  A 10 percent rating, and no higher, is granted from December 10, 2015.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  There are no additional expressly or reasonably raised issues presented on the record.


ORDER

An initial rating of 70 percent, and no higher, for PTSD with depression and anxiety is granted. 

An initial rating in excess of 10 percent for groin adenopathy with cutaneous nerve involvement, right leg is denied.

Prior to December 10, 2015, an initial compensable rating for scar, residuals of groin adenopathy of the right leg is denied.

From December 10, 2015, a rating of 10 percent, and no higher, for scar, residuals of groin adenopathy of the right leg, is granted.


REMAND

The Veteran seeks service connection for sleep apnea.  He was diagnosed with sleep apnea in December 2010.  The Veteran relates that his service duties included 24 hour shifts which were disruptive to sleep patterns and resulted in increased difficulty sleeping, snoring, drowsiness and lack of energy.  See July 2011 VA 21-4138.  The Veteran also reports that he was given sleeping tablets and informed that he was to be placed on a sleep study.  He asserts that the aforementioned symptoms have continued since service.  The Veteran has not been afforded a VA examination in relation to this claim.  As such, the Board finds a VA examination is necessary.  See McClendon v. Nicholson, 20 Vet. App. 79 (2006). 

Additional development is also needed regarding TDIU.  On remand, the Veteran should be sent notice informing him how to substantiate a claim for TDIU, and he should be asked to complete a VA Form 21-8940.

Accordingly, the case is REMANDED for the following action:

1.  Send the Veteran VCAA notice informing him how to substantiate a claim for TDIU.  He should also be asked to complete a VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability.

2.  Contact the Veteran and request that he identify any pertinent medical treatment related to his sleep apnea.  After obtaining any necessary authorization, request the records.  Also, obtain complete VA treatment records since December 2015.  

If either the VA or private records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159 (e) (2017).

3.  Schedule the Veteran for a VA examination to evaluate the nature and etiology of sleep apnea.  The entire claims file must be reviewed by the examiner.  All appropriate diagnostic testing must be conducted. 

The examiner is asked to opine on whether it is at least as likely as not (a probability of 50 percent or greater), the Veteran's sleep apnea had onset in service, or is etiologically related to the Veteran's active service.  

A complete rationale for the requested opinions should be provided.  In answering the question above, the examiner must consider the Veteran's competent and credible statements that in service duties included 24 hours shifts, which were disruptive to sleep patterns and resulted in increased difficulty sleeping, snoring, drowsiness and fatigue which continued after service.  If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, he or she must explain why this is so.

4.  Thereafter, readjudicate the appeal.  If any of the benefits sought on appeal remain denied, issue a supplemental statement of the case and give the Veteran and his representative the opportunity to respond.  Then return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).



______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs



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