Citation Nr: 1332019	
Decision Date: 10/03/13    Archive Date: 10/07/13

DOCKET NO.  07-17 279A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for service-connected lumbar strain for the period prior to May 16, 2008, and beginning May 27, 2009.

2.  Entitlement to a rating in excess of 50 percent for a service-connected acquired psychiatric disorder comprised of major depression and posttraumatic stress disorder (PTSD) for the period prior to May 16, 2008, and from May 27, 2009, to June 2, 2013.


REPRESENTATION

Veteran represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

Veteran

ATTORNEY FOR THE BOARD

S. Becker, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the Navy from December 1999 to December 2004.  He thereafter served in the Navy Reserve, with an additional period of active duty service from May 17, 2008, to May 26, 2009.  

This matter comes before the Board of Veterans' Appeals (Board) from a December 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.  The Veteran's previously established 50 percent rating 20 percent rating for lumbar strain and 50 percent rating for major depression each were reduced to 10 percent effective April 1, 2007, therein.  He perfected an appeal as to these determinations.  

In October 2008, the Veteran was notified that disability compensation cannot be paid during his additional active duty service period.  In October 2012, he testified before the undersigned.  The Board decided in February 2013 that the reductions of the Veteran's rating for both lumbar strain as well as for major depression was improper and that therefore each rating was restored.  Whether or not increased ratings are merited was remanded for additional development.

At this time, such development has been completed or at least substantially completed only with respect to the lumbar strain of this matter.  Adjudication thus may proceed if otherwise in order.  Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); Stegall v. West, 11 Vet. App. 268 (1998).  No potential problems with adjudication are found at this time.  Thus, the following determination is made based on review of the Veteran's paper claims file and Virtual VA electronic claims file.  The major depression issue of this matter, now recharacterized as above for the reasons set forth herein, is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC, based on this review.
FINDING OF FACT

The Veteran's lumbar strain did not manifest thoracolumbar spine forward flexion of 30 degrees or less, ankylosis, or incapacitating episodes lasting at least four weeks per year during the period prior to May 16, 2008.  It has not done so during the period beginning May 27, 2009.

CONCLUSION OF LAW

The criteria for a rating in excess of 20 percent for a lumbar spine disability for the period prior to May 16, 2008, and beginning May 27, 2009, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 3.340, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.15, 4.16, 4.31, 4.40, 4.45, 4.59, 4.71, 4.71a, Diagnostic Codes 5237, 5243 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

Before addressing the merits, the Board notes that VA has a duty of notification regarding a claim for VA benefits.  38 U.S.C.A. § 5103; 38 C.F.R. § 3.159.  The claimant and his representative must be notified prior to the initial decision by the agency of original jurisdiction (AOJ) of the evidence necessary to substantiate the claim, that VA will seek to obtain, and that the claimant is expected to provide.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  For increased ratings, generic rather than specific notice about substantiating the claim is required.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (overturning Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008)).  Notice of how ratings and effective dates are assigned also should be included.  Id.; Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (overturning Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007)).  None is found.  Letters dated in January 2007, July 2008, and March 2013 informed the Veteran and his representative of the criteria for establishing an increased rating, the evidence required in this regard, his and VA's duties for obtaining evidence, and how ratings and effective dates are assigned.  The second letter even informed them of the criteria for establishing a higher rating specifically for spinal conditions.  The latter letter was sent in compliance with the Board's remand.  None of the letters preceded the initial adjudication by the RO, which in this case is the AOJ, in December 2006.  Yet there was subsequent readjudication in supplemental statements of the case (SSOC), including the last dated in July 2013.  This readjudication following notice has cured the notice timing error for this issue.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006).  Finally, it is notable that the Veteran has had the opportunity to participate in the processing of the lumbar strain issue of this matter.

In addition to the duty to notify, VA has a duty to assist with respect to a claim for VA benefits.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This includes a requirement to aid the claimant in the procurement of relevant records.  38 U.S.C.A. § 5103A(b-c); 38 C.F.R. § 3.159(c)(1-3).  VA also is required to provide a medical examination and/or obtain a medical opinion when necessary.  38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4).

Service personnel records and VA treatment records regarding the Veteran have been obtained.  These former records and some of these latter records were obtained as directed in the Board's remand.  Only some of the Veteran's service treatment records have been obtained.  Specifically, those dated during his second period of active duty service are missing.  This is despite extensive efforts to obtain them, to include pursuant to the Board's remand.  They thus were deemed unavailable, following several letters informing the Veteran that they had not been obtained.  No private treatment records have been obtained.  This is because the Veteran has not identified any such records despite having had opportunities, to include pursuant to the Board's remand, to do so.  VA medical examinations were performed in November 2006, April 2008, October 2010, and June 2013.  The June 2013 examination was performed in compliance with the Board's remand.  To the extent the paper or Virtual VA electronic claims file was not reviewed by an examiner, it is of no great import since the Veteran gave an account of his medical history.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); D'Aries v. Peake, 22 Vet. App. 97 (2008).  Each examiner interviewed him regarding his current symptoms and undertook an assessment of him.  These actions have provided sufficient detail so that the decisions made herein are fully informed.  As such, the examinations are adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).

It is significant that neither the Veteran nor his representative has identified any further development necessary for fair adjudication on the merits that has not been completed.  The record also does not indicate any further development.  Thus, the Board finds that no further notice or assistance is required and that VA's duties to notify and to assist have been satisfied.  Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio, 16 Vet. App. at 183.  Appellate review therefore may proceed without prejudice to the Veteran.  Bernard v. Brown, 4 Vet. App. 384 (1993).

Of final note, a hearing must include an explanation of the issues and identification of evidence that may have been overlooked.  38 C.F.R. § 3.103(c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010).  The undersigned stated the issues comprising this matter at the beginning of the Veteran's hearing.  Information was elicited from him by the undersigned and his representative concerning his spinal symptoms, their impact on his functioning, and his treatment for them.  He reported having received no treatment for his spine.  This explains the lack of private treatment records as well as the fact that the few VA treatment records are not pertinent.  The Veteran was informed that a statement from his wife may be useful.  However, no statements from them or anyone else have been submitted.

II.  Higher Evaluation

A.  Schedular

Disability ratings represent as far as practicably can be determined the average impairment in earning capacity due to a disability.  38 U.S.C.A. § 1155.  A rating is assigned under the Rating Schedule by comparing the extent to which a claimant's disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by his symptoms, with the rating criteria for the disability.  Id.; 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Examinations must be interpreted, and if necessary reconciled, into a consistent picture so that the rating is accurate.  38 C.F.R. § 4.2.  The assignment of a staged rating, where two or more ratings are assigned for different portions of the period on appeal, must be considered.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55 (1994).  If two ratings are potentially applicable, the higher is assigned if the disability more nearly approximates the criteria required for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant, however.  38 C.F.R. § 4.3.  The claimant thus prevails if the evidence supports an increased rating or is in relative equipoise, but does not prevail when the preponderance of the evidence is against an increased rating.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

A musculoskeletal disability involves the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  38 C.F.R. § 4.40.  Functional loss in the form of limitation of motion may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion, or weakness.  Id.; 38 C.F.R. § 4.59.  It also may be due to excess fatigability or incoordination.  38 C.F.R. § 4.45.  An increased rating for functional loss, to include during flare ups, due to those factors accordingly may be assigned under Diagnostic Codes predicated on limitation of motion.  Id.; 38 C.F.R. §§ 4.40, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).

Like other back conditions, a rating for lumbosacral strain is to be made with or without symptoms such as pain, whether or not it radiates, stiffness, or aching under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, Diagnostic Code 5237.  A 20 percent rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating requires forward flexion of the thoracolumbar spine is limited to 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine.  Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating.  The maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  Normal forward flexion of the thoracolumbar spine is from 0 to 90 degrees.  38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (2), Plate V.  Separate ratings are to be assigned under appropriate Diagnostic Codes for bowel impairment, bladder impairment, or any other objective neurologic abnormality associated with the back condition.  38 C.F.R. § 4.71a, Diagnostic Code 5237, Note (1).

Intervertebral disc syndrome (IVDS) is rated under either the aforementioned General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher rating.  38 C.F.R. § 4.71a, Diagnostic Code 5243.  A 20 percent rating is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months results in award of a 40 percent rating.  The maximum rating of 60 percent requires incapacitating episodes having a total duration of at least six weeks during the past 12 months.  An incapacitating episode remained defined as a period of acute signs and symptoms requiring physician treatment and bed rest prescribed by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

The probative value of the evidence must be assessed.  38 C.F.R. § 4.6.  The Board must account for evidence it finds to be persuasive or unpersuasive and provide reasons for rejecting any evidence favorable to the Veteran.  Gabrielson v. Brown, 7 Vet. App. 36 (1994), Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  That includes any lay evidence in addition to the medical evidence.  Only the most relevant evidence need be discussed, even though all the evidence has been reviewed.  Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).  That includes evidence dated beginning one year prior to an increased rating claim.  38 C.F.R. § 3.400(o)(2).  It also includes evidence dated even earlier that sheds light on the disability during the timeframe on appeal.  38 C.F.R. § 4.1.

In light of the evidence, the Board finds that an increased rating for the Veteran's lumbar strain during the period prior to May 16, 2008, and beginning May 27, 2009, is not warranted.  The criteria for a rating of 40, 50, and 100 percent for back conditions such as lumbosacral strain, which is similar to lumbar strain, have not been met.  There indeed is no indication that the Veteran's entire thoracolumbar spine is favorably or unfavorably ankylosed.  It follows that his entire spine, both thoracolumbar and cervical, is not unfavorably ankylosed.  There also is no indication that the Veteran's forward flexion is to 30 degrees of less.

Ankylosis is immobility and consolidation of a joint.  Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007); Lewis v. Derwinski, 3 Vet. App. 259 (1992); Nix v. Brown, 4 Vet. App. 462 (1993); Shipwash v. Brown, 8 Vet. App. 218 (1995).  In other words, it is stiffening or fixation of a joint.  Dinsay v. Brown, 9 Vet. App. 79 (1996).  The difference between favorable and unfavorable ankylosis is the position of it and whether or not it causes associated difficulties.  38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242, Note (5).  It was determined at the VA medical examination in November 2006 that the Veteran did not have any fixed deformity (ankylosis) of his spine.  This same determination was made at the April 2008 VA medical examination.  As such, the deduction that there was no ankylosis, whether favorable or unfavorable, of the Veteran's thoracolumbar spine as of April 2008 readily is made.  No mention of ankylosis was made at the October 2010 VA medical examination.  By inference, then, the Veteran did not develop favorable or unfavorable thoracolumbar spine ankylosis by then.  Detection of and therefore reference to it indeed would be expected upon examination if it existed.  Buczynski v. Shinseki, 24 Vet. App. 221 (2011).  The June 2013 VA medical examination found no ankylosis.  The deduction that ankylosis, whether favorable or unfavorable, of the Veteran's thoracolumbar spine still has not developed thus readily is made.  He indeed has been able to move his thoracolumbar spine at least somewhat in every direction at each VA medical examination.  There is no immobility, consolidation, stiffening, or fixation at a specific point.
The Veteran's forward flexion initially was to 65 degrees with pain at the end point at the November 2006 VA medical examination.  He reported an increase in pain with repetition, but there was no change in his forward flexion range.  This range was to 90 degrees with pain throughout and more pain at the end point at the April 2008 VA medical examination.  Repetition did not result in any decrease in forward flexion range.  The Veteran's forward flexion at the October 2010 VA medical examination again was to 90 degrees, with pain from 80 to 90 degrees.  There was pain throughout with repetition, but no change in his forward flexion range.  At the June 2013 VA medical examination, his forward flexion range was to 75 degrees with pain beginning at 45 degrees.  Repetition did not cause a decrease in this range.  In sum, the Veteran's forward flexion consistently has been well above 30 degrees.  The pain experienced by him during forward flexion is inconsequential.  Painful motion does not constitute limited motion.  Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Weakness, incoordination, excess fatigability, and lack of endurance were not identified as impacting the Veteran's forward flexion at any of the VA medical examinations.  Even if one or more of these factors had been so identified, the Veteran's forward flexion has not been reduced to 30 degrees or less in consequence thereof.

Of note, forward flexion essentially is bending.  The Veteran testified during his hearing that he sometimes is not really able to bend over to pick things up.  He is a lay person because there is no indication that he has a medical background.  He is competent to report difficult bending because such would be within his personal experience.  Layno v. Brown, 6 Vet. App. 465 (1994).  Competent lay evidence may be discounted due to interest, self-interest, bias, inconsistency, inconsistency with other evidence, facial implausibility, bad character, malingering, desire for monetary gain, and witness demeanor.  Pond v. West, 12 Vet. App. 341 (1999); Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997); Macarubbo v. Gober, 10 Vet. App. 388 (1997); Caluza v. Brown, 7 Vet. App. 498 (1995); Cartright v. Derwinski, 2 Vet. App. 24 (1991).  It is facially plausible that the Veteran at least occasionally may experience bending difficulty.  Yet the VA medical examinations show that he consistently has been able to forward flex his thoracolumbar spine to a significant degree initially and repeatedly.  The inconsistency between these examinations and his statement strongly suggest that he is motivated by self-interest and a desire for financial gain to exaggerate the extent of his bending difficulty.  His tendency to exaggerate was confirmed, with respect to his report on flare-ups as set forth below, at the June 2013 VA medical examination.  Such a drastic reduction in forward flexion from the 65 to 90 degrees measured at the VA medical examinations to approximately zero degrees, which is akin to not being able to bend over, further is implausible.  The Veteran's testimony accordingly is not credible.  As such, there remains no evidence supporting forward flexion of 30 degrees of less.

Acknowledgement is given to the Veteran's reports at the VA medical examinations of experiencing flare-ups.  He is competent in this regard for the same reason as above.  Also as above, his reports are partially credible.  That he experiences flare-ups, in particular, is credible because there is no significant reason for doubt.  The statements concerning the frequency, duration, and severity of his flare-ups are not credible.  It was noted at the June 2013 VA medical examination that the Veteran indicated having flare-ups so severe that he could not leave the house three to four days per week.  Yet, he also indicated having missed only one day of work in the past four months due to his back.  The conclusion reached was that the missed day of work was more representative of the Veteran's flare-ups than his report concerning them.  His exaggeration during this VA medical examination strongly suggests that he may have exaggerated during the others.  In any event, the Veteran has not reported specifically that his forward flexion range is limited more than normal during flare-ups.  Forward flexion also has not been measured during a flare-up.  An estimate of forward flexion during a flare-up further has not been estimated, whether by the Veteran or by a medical professional.  Concluding that forward flexion is to 30 degrees of less during flare-ups accordingly would require resort to pure speculation.  Pure speculation is insufficient when considering the degree of disability present.  38 C.F.R. § 3.102.  

With respect to a separate rating for a neurologic abnormality associated with the Veteran's lumbar strain, no consideration of his lower extremities is necessary.  A July 2013 rating decision indeed granted service connection and assigned initial ratings for radiculopathy of each lower extremity.  The Veteran denied bowel and bladder problems as well as erectile dysfunction at the November 2006, April 2008, and October 2010 VA medical examinations.  He is competent to make these denials for the same reason as above.  His denials are credible because there is no significant reason to doubt them.  Indeed, it was determined at the June 2013 VA medical examination that the Veteran did not have bowel or bladder impairment or any other objective neurologic abnormality other than radiculopathy.

Regarding IVDS, the Veteran does not have a diagnosis.  Such a diagnosis specifically was rejected at the June 2013 VA medical examination.  Yet degenerative disc disease, a condition which clearly involves the spinal discs, was diagnosed at this examination.  There in any event is no indication of incapacitating episodes of any duration.  Nothing of the sort has been reported by the Veteran.  He rather denied periods of incapacitation at the October 2010 VA medical examination.  He is competent to make this denial for the same reason as above.  It is credible because there is no significant reason for doubt.  Incapacitating episodes indeed are impossible given the lack of relevant treatment.  Their absence signifies that the Veteran has not been scheduled to be seen by a physician for his back symptoms, must less seen by a physician on an emergency basis for acute back symptoms.  There accordingly has been no prescription for bed rest.  In sum, the highest rating possible would be noncompensable for every 12 month period in question.  38 C.F.R. § 4.31.  The 20 percent rating assigned pursuant to the aforementioned thus stands as the higher rating.

The Board has considered the application of reasonable doubt and the assignment of a staged rating in making each of the above conclusions leading to the decision that an increased rating for the Veteran's lumbar strain during the period prior to May 16, 2008, and beginning May 27, 2009, is not warranted.  However, the preponderance of the evidence is against the assignment of a rating higher than 20 percent for any portion of either period.  It follows that there is no reasonable doubt to resolve in the Veteran's favor and that a staged rating is not warranted.

B.  Extraschedular

As an alternative to assigning a schedular rating, or a rating under the Rating Schedule, one may be assigned on an extraschedular basis.  38 C.F.R. § 3.321(b); Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  A three step process governs the assignment of extraschedular ratings.  38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008).  First, a determination of whether the evidence presents such an exceptional disability picture that the schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology must be made.  If the rating criteria are inadequate, it must be determined whether the Veteran exhibits other related factors such as marked interference with employment or frequent periods of hospitalization.  If such related factors are exhibited, then referral third must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for consideration of an extraschedular rating.

Neither the Veteran nor his representative has argued for an extraschedular rating.  There is no indication that his lumbar strain cannot be contemplated adequately by the schedular rating criteria discussed above.  The Veteran's symptoms, which primarily consist of pain and limited motion, specifically are accounted for by these criteria and associated regulations.  The assigned rating has been based on these sources.  Higher ratings are possible pursuant to them, but the Veteran does not meet the criteria for a higher rating.  The effect his lumbar strain has on him thus is encompassed by the assigned rating, in other words.  That includes resulting limitations in his ability to sit, stand, walk, bend, squat, lift, twist or turn about the waist, drive, and exercise to include run.  It also includes that he has takes over the counter pain medication.

Because the schedular rating criteria are adequate, the Board does not find an exceptional lumbar strain picture.  Discussion of whether there are related factors accordingly is unnecessary.  Yet it is notable that there is no indication the Veteran ever has been hospitalized overnight due to his back.  Although it concededly has interfered with his employment at least at some point during the periods in question, there is no indication this interference has arisen to the level of marked.  It indeed was opined at the April 2008 VA medical examination that his back had no effect on his occupation.  It was opined at the June 2013 VA medical examination that it prevented him only from performing physically demanding work.  He was deemed capable of sedentary work, in other words.  In sum, the Board finds that referral for consideration of the assignment of an extraschedular rating is not warranted.

C.  Total Disability Rating Based on Individual Unemployability (TDIU)

Total disability means that there is present any impairment of mind or body that renders it impossible to follow a substantially gainful occupation.  38 C.F.R. §§ 3.340, 4.15.  A TDIU, if expressly raised by the Veteran or reasonably raised by the record, is part of an increased rating claim because it involves an attempt to obtain an appropriate rating for the service-connected disability or disabilities involved.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  A TDIU may be assigned only where the schedular rating is less than total.  38 C.F.R. § 4.16(a).  Yet even when one service-connected disability is rated at 100 percent, consideration must be given to whether a TDIU may be assigned for another service-connected disability or other service-connected disabilities.  Bradley v. Peake, 22 Vet. App. 280 (2008) (overturning Green v. West, 11 Vet. App. 472 (1998); Vettese v. Brown, 7 Vet. App. 31 (1994); Holland v. Brown, 6 Vet. App. 443 (1994); VAOPGCPREC 06-99).  This is because special monthly compensation (SMC) may be warranted even though no additional disability compensation may be paid.  Id.  SMC indeed is payable where there is a single service-connected disability rated at 100 percent and additional service-connected disability or disabilities independently rated at 60 percent or more.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).

In a July 2013 rating decision, the Veteran's rating for his major depression to include PTSD was increased to 100 percent effective June 3, 2013.  SMC also was awarded effective as of this date.  It follows that there is no need to consider whether a TDIU is warranted for the Veteran's lumbar strain as of this date.  A TDIU on the basis of all his service-connected disabilities was denied in a rating decision dated February 12, 2008.  He did not initiate, much less perfect, an appeal of that determination.  There accordingly is no basis to reconsider whether a TDIU is warranted for the Veteran's lumbar strain prior to that time.  With respect to a TDIU for this disability from February 13, 2008, to June 2, 2013, neither the Veteran nor his representative has alleged his lumbar strain is so severe that it rendered him unable to work.  The evidence further does not indicate this to be the case.  Of note in this regard are the aforementioned opinions from the April 2008 and June 2013 VA medical examinations and the fact that the Veteran indicated being employed at the latter examination.  He similarly indicated having several jobs, albeit each only for a short period, at a June 2013 VA medical examination concerning his psychiatric state.  Regarding at least some of his time not working, he noted during the October 2010 VA medical examination that he was a student.  Consideration of a TDIU as a component of this matter, in sum, is not warranted.  

ORDER

A rating in excess of 20 percent for lumbar strain for the period prior to May 16, 2008, and beginning May 27, 2009, is denied.

REMAND

The Board sincerely regrets the delay another remand entails, but adjudication of the Veteran's claim for an increased rating for his service-connected major depression and PTSD cannot be undertaken as of yet.  Additional development is needed to ensure he is afforded every possible consideration.

In its February 2013 remand, the Board directed that attempts be made to procure a variety of records and to corroborate the in-service stressors the Veteran claims caused his PTSD and that he be afforded a VA medical examination.  If, after completion of this development, the increased rating sought by him could not be fully granted, readjudication was to take place in a SSOC.  The AMC completed the development, issued the aforementioned July 2013 rating decision considering the Veteran's PTSD together with his major depression, and reiterated that a 100 percent rating was assigned effective June 3, 2013, for the service-connected acquired psychiatric disorder comprised of them.  The AMC concluded that this represents a full grant of the benefit sought and did not issue an SSOC.  

The AMC's conclusion is erroneous.  While the maximum rating of 100 percent was awarded, it was not awarded for the entire timeframe on appeal.  Whether or not an increased rating is warranted prior to the June 3, 2013, effective date of the 100 percent rating remains at issue, in other words.  AB v. Brown, 6 Vet. App. 35 (1993).  This includes the period prior to May 16, 2008, and from May 27, 2009, to June 2, 2013.  It follows that there has not been a full grant of the benefit sought.  The Board's remand accordingly required issuance of a SSOC.  This was in recognition of the fact that a SSOC must be issued where, as here, evidentiary development is undertaken on remand.  38 C.F.R. § 19.31(c).  To cure the failure to issue a SSOC, one must be issued at this time.  The claimant indeed has the right to compliance with the directives in a Board remand.  Stegall, 11 Vet. App. at 268.

Given the above, a REMAND is directed for the following:

Issue a SSOC regarding the Veteran's claim for a rating in excess of 50 percent for the service-connected acquired psychiatric disorder comprised of major depression and PTSD for the period prior to May 16, 2008, and from May 27, 2009, to June 2, 2013.  Furnish him and his representative a copy and allow them the requisite time period to respond and place a copy in the paper or Virtual VA electronic claims file.  Process the aforementioned issue for return to the Board.

No action is required of the Veteran until he is notified by the AMC, but he is advised that he has the right to submit additional evidence and argument on the issue being remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This matter must be afforded prompt treatment. The law indeed requires all matters remanded by the Board or the United States Court of Appeals for Veterans Claims be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).


______________________________________________
THERESA M. CATINO
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs