Citation Nr: 1543868	
Decision Date: 10/14/15    Archive Date: 10/21/15

DOCKET NO.  14-07 242	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement an initial disability rating in excess of 50 percent for depressive disorder with alcohol and cannabis use disorder (depressive disorder).

2.  Entitlement a disability rating in excess of 20 percent for a service-connected cervical spine disability.

3.  Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a low back disorder, including as secondary to service-connected disabilities, and if so, whether service connection may be granted.

4.  Service connection for a left shoulder disorder to include as secondary to service-connected cervical spine disability.

5.  Entitlement to an effective date earlier than July 17, 2011, for the grant of service connection for depressive disorder.


REPRESENTATION

Veteran represented by:	 J. Michael Woods, Attorney


ATTORNEY FOR THE BOARD

K. Forde, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from September 1988 to October 1993. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010, April 2012 and April 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  

The Veteran filed a claim of entitlement to service connection for sleep impairment.  In an April 2014 rating decision, the RO granted entitlement to an initial 50 percent rating for depressive disorder, effective July 17, 2011.  The RO explicitly included sleep impairment in the grant of service connection for depressive disorder and noted that "this decision is considered a full grant of the appeal for sleep issues."  Therefore, the Board finds that service connection for sleep impairment has been granted in full by the RO.  

In September 2015, the Veteran waived the right to initial RO review of evidence received after the March 2015 statement of the case (SOC).  No additional action in this regard is warranted.  See 38 C.F.R. § 20.1304(c) (2014).  

In July 2015, the Veteran filed a motion to advance his appeal.  The issuance of this decision renders that motion moot.  

The Board has reviewed all pertinent evidence in the Veteran's claims file, which has been converted in its entirety to an electronic record as part of VA's paperless Veterans Benefits Management System (VBMS).

The issues of entitlement to service connection for a lumbar spine disorder, a left shoulder disorder and the question of the effective date for service connection for a psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  Throughout the appeal, the Veteran's depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective social relationships, difficulty in adapting to stressful circumstances, anger, irritability, isolation, hypervigilance; without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas.  

2.  Throughout the appeal, even considering the Veteran's pain and corresponding functional loss, his cervical spine disability was not manifested by forward flexion limited to 15 degrees or less; or ankylosis; or incapacitating episodes of intervertebral disc disease requiring bedrest prescribed by a physician.

3.  The September 2004 rating decision that denied service connection for a back disorder is final as the Veteran did not initiate an appeal or submit new and material evidence within one year of that decision.  

4.  Evidence received since the September 2004 rating decision is neither cumulative nor redundant, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a back disorder.


CONCLUSIONS OF LAW

1.  The criteria for an initial disability rating in excess of 50 percent for depressive disorder are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9435 (2014).

2.  The criteria for a disability rating in excess of 20 percent for a cervical spine disability are not met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.10, 4.40, 4.59, 4.71a, DCs 5235-5243 (2014).

3.  New and material evidence has been received to reopen a claim of entitlement to service connection for a low back disorder.  38 U.S.C.A. § 5108 (West 2014); 38 C.F.R. § 3.156 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Here, the Veteran has been sent a notice letter on October 2011 providing the necessary information.  See 38 U.S.C.A. § 5103.  Therefore, the duty is satisfied. 

VA also has a duty to assist the Veteran in the development of the claims.  This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's service and post-service treatment records, lay statements, and a February 2014 private disability benefits questionnaire (DBQ) have been obtained.  The Veteran has not stated that there are any additional records that VA should seek to obtain on his behalf.  

The Veteran was afforded appropriate VA examinations.  The Board finds that the examinations are adequate in order to evaluate the severity of the service-connected cervical spine disorder and depressive disorder, as they include clinical evaluations of the Veteran.  The Veteran has not reported, nor does the record show, that his service-connected cervical spine disorder or depressive disorder have worsened in severity since the most recent VA examination in February 2012.  As such, new examinations are not required.  See Palczewski v. Nicholson, 21 Vet. App. 174 (2007).

In view of the foregoing, VA's duty to assist has been satisfied.  

II.  Schedular Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  38 C.F.R. § 4.1.  

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate.  See Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007); Francisco v. Brown, 7 Vet. App. 55, 58 (1994).

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of symptoms.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge).  Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  

In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others.  In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence.  Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007).  Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so.  Bryan v. West, 13 Vet. App. 482, 488-89 (2000).  In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so.  Evans v. West, 12 Vet. App. 22, 30 (1998).  

A.  Depressive Disorder

The Veteran asserts that his psychiatric disability is more severely disabling than his currently assigned 50 percent rating.  

The Veteran's depressive disorder is currently rated under the General Rating Formula for Mental Disorders.  38 C.F.R. § 4.130, DC 9440 (2014).  Ratings are assigned according to the manifestation of particular symptoms.  However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).  Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code.  VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association:  Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV).  When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board's "primary consideration" is the Veteran's symptoms.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013.) 

A 50 percent rating is warranted for symptoms manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  

A 70 percent rating is assigned when the psychiatric condition produces 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.   

Finally, a 100 percent rating is warranted when there is total occupational or 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. 

Following a review of the record, which includes VA treatment records, the Veteran's lay statements, a February 2012 VA examination report, and a February 2014 private DBQ, the Board finds that the preponderance of the evidence shows that his depressive disorder does not warrant a rating in excess of 50 percent at any point during the appeal.  The Board finds that his depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: anxiety, chronic sleep impairment, flattened affect, nightmares, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances.

The Veteran's symptoms do not more nearly approximate a rating in excess of 50 percent under the General Rating Formula as they are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.  In this regard, there is no evidence of: obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name.  On the contrary, VA examination reports and treatment notes show normal speech and communication skills; cooperative behavior; absence of violence; and thought content free of obsessive thoughts.  His hygiene was appropriate and within normal limits.  He maintained good eye contact, and he was oriented times three.  

As to occupational impairment, during the appeal the Veteran had a period of unemployment, faced financial stress, and was near homelessness.  (The Veteran reported in a February 2012 VA treatment record that an on the job non-service connected shoulder injury caused him to lose his job.)  However, the Veteran is currently employed as a truck driver.  As to difficulty in adapting to stressful circumstances (including work or a work like setting), the February 2014 private DBQ noted that the Veteran's depressive disorder would cause him to miss three or more days of work per month, but the overall evidence does not indicate that his difficulties with adapting to stressful situations are so severe as to warrant a higher disability rating.  

The evidence shows that the Veteran has an effective relationships with his wife of over 19 years who accompanies him on his truck routes, and while he does not have a relationship with his biological son or his step-children, he is not unable to maintain relationships.  This difficulty is contemplated by his current 50 percent disability rating.

As to other symptoms indicative of a higher rating, the Veteran experiences disturbances of mood and motivation.  However, his depression has not been so severe as to be near-continuous or to affect his ability to function independently, appropriately, and effectively.  Treatment records dated during this period show reported mood improvement and reduced depression on multiple occasions.  Specifically, in July 2011, the Veteran reported feelings of hopelessness and the examiner noted mild depression.  In January 2012, he denied having feelings of hopefulness.  

The Veteran reported that he attempted suicide in 2003.  However, throughout this appeal, he has consistently denied suicidal ideation or intent.  While that remote symptom is obviously serious, it was over ten years ago, and taken in context with otherwise consistent denials of suicidal ideation and intent is not sufficient, standing alone, to warrant a 70 percent evaluation.

As to impaired impulse control, the Veteran has consistently reported irritability and being "grumpy."  However, the evidence shows no history of violence.  Further, VA treatment records note good impulse control, judgment, and insight.  Thus, while the Veteran struggles with irritability, the Board finds that there is no evidence of impaired impulse control sufficient to warrant a higher evaluation.

Dr. Fink's February 2014 private DBQ found intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  However, that was a telephonic interview, and while Dr. Fink indicated he had reviewed the claims file, the Veteran's VA treatment records note only a disheveled appearance, but otherwise the Veteran was clean.  Further, at his February 2012 VA examination, the Veteran was adequately groomed with good personal hygiene, and Dr. Fink found that the Veteran is capable of managing his financial affairs.  

The Board acknowledges that the February 2014 private DBQ produced by the Veteran found that the Veteran had deficiencies in most areas.  The Veteran reported that he took himself off of psychotropic medication in order to obtain his truck driving license.  He further reported that he continues to drink "a little bit of beer" as a means to self-medicate.  However, the examiner did not identify specific symptoms involving family relations, judgment, thinking, or mood.  As previously noted, the Veteran is currently employed on a full-time basis and has a supportive long-term relationship with his wife.  Further, a September 2011 VA mental health treatment record notes the Veteran's strengths as: family support, insight, judgment, communication skills, and social skills.  

Finally, the Global Assessment of Functioning (GAF) Scale scores are not consistent with a rating in excess of 50 percent.  Throughout the appeal, the Veteran's GAF scores have reflected mild to moderate symptoms, ranging from 51 to 64.  These scores are in keeping with his moderate symptoms (e.g., constricted affect), moderate difficulty in social, functioning (e.g., few friends), and some mild symptoms and impairment (e.g., depressed mood but some meaningful interpersonal relationships).  He has not been assigned any GAF scores below 51 that would indicate more serious symptoms.  [The GAF was a tool described in the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), that set out scores ranging between zero and one hundred percent.  The scores represent the psychological, social, and occupational functioning of an individual with regard to their mental health with higher functioning persons scoring higher on the scale.  A GAF score ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job).  A GAF score between 51 and 60 is assigned when there are moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers).  A GAF score of 61 to 70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships.  A GAF score of 71 to 80 indicates transient symptoms and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument).  American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (4th ed., 1994).]   

The Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the objective mental status examinations, have most nearly approximated the criteria for a 50 percent rating throughout the appeal.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert.

B.  Cervical Spine 

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  However, while pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991).  

Pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors.

In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25.  Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities.  38 C.F.R. § 4.14.

Under VA's Rating Schedule, disabilities of the spine, are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.  38 C.F.R. § 4.71a, The Spine, General Rating Formula for Diseases and Injuries of the Spine, Note (6) (2014). 

The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, 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 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine.  A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine.  38 C.F.R. § 4.71a.

The notes discussed below in pertinent part follow and pertain to the General Rating Formula for Diseases and Injuries of the Spine: 

Note (1) Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. 

Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  See also Plate V, 38 C.F.R. § 4.71a. 

Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.

The Veteran's cervical spine disability has been assigned a single 20 percent rating throughout the period of appellate review, which begins on March 29, 2010, when he filed a claim for increase, plus the one-year look back period.  

Following a review of the evidence of record, the Board finds that throughout the appeal, the Veteran's service-connected cervical spine disability does not warrant a disability rating in excess of 20 percent.  

The Veteran was afforded a VA examination in June 2011.  He reported pain, difficulty sleeping due to pain, stiffness and spasms.  Physical examination showed forward flexion to 20 degrees; extension to 10 degrees; right and left lateral flexion to 0 degrees; right lateral rotation to 40 degrees; and left lateral rotation to 30 degrees.  There was no additional limitation due to pain on repetitive motion.  Nevertheless, pain increased on repetition, and the examiner noted the disability would result in increased absenteeism due to pain.  The examiner specifically noted that there was no evidence of ankylosis.

The February 2012 VA examination reflects the Veteran demonstrated forward flexion to 20 degrees.  After repetitive testing, he had forward flexion to 25 degrees.  In other words, he actually showed greater range of motion with repetitive testing.  The Board also notes there was no findings of ankylosis, and that the aforementioned forward flexion findings do not demonstrate immobility and/or consolidation of this spine.  Nevertheless, pain increased on repetition, and the examiner noted the disability would limit physical work.  

Despite the Veteran's complaints of pain, limitation of flexion of the cervical spine to 15 degrees or less, or favorable or unfavorable ankylosis of the entire cervical spine, is not present.  Although pain may cause functional loss, pain itself does not constitute functional loss.  Mitchell, 25 Vet. App. at 32.  Rather, pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Id.; see 38 C.F.R. § 4.40.  Here, the evidence of record does not reveal additional functional impairment, including additional limitation of motion, on account of pain and stiffness that was not already contemplated.  Thus, an increased rating is not warranted even with consideration of painful motion and other factors.

The Board also notes that there is no indication of any neurological impairments associated with the Veteran's service-connected cervical spine disorder.  Although the February 2012 VA examiner found radiculopathy of the bilateral upper extremities, the April 2012 addendum opinion stated that the Veteran's radiculopathy is related to his non-service connected shoulder disorder.  The examiner explained that the X-rays of the cervical spine show no stenosis or nerve pinching.  His bilateral upper extremities symptoms are therefore most likely caused by the adhesive capsulitis and is related to the shoulder injuries.  Therefore, the Board finds that the Veteran is not entitled to a separate rating for such impairment pursuant to Note (1) to the General Rating Formula for Diseases and Injuries of the Spine.  

The Board further notes that there is no indication that the service-connected cervical spine disorder warrants consideration of the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.  

The Board also notes the Veteran has residual surgical scarring from his cervical spine surgery.  The 2012 examination revealed that the scar is stable and non-tender.  As the scar does not exceed an area of six square inches, and is not painful or unstable, a separate rating is not warranted.  38 C.F.R. § 4.118, DCs 7801-7805 (2014).  

C.  Other Considerations

The Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected cervical spine disability and depressive disorder.  Based upon the record, there is no time during the appeal where the cervical spine and depressive disorder have been more disabling than as currently rated under the present decision of the Board.  Hart.

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321 (2014).  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

The Board finds that the criteria for rating mental disorders contemplate the Veteran's disability because the criteria in the rating schedule only serve as examples, as opposed to limiting the symptoms that are to be considered.  As to the spine, the criteria contemplate both pain and limitation of motion, the Veteran's chief complaints.  As such, the Board finds that referral for extraschedular consideration is not warranted on the record before it.  

Moreover, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014) a veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all of the service-connected disabilities experienced.  However, in this case, there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition.  Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions.

Finally, the Court has held that entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  In this case, the Veteran has not alleged, and the record has not otherwise shown, that his depressive disorder and cervical spine disability prevents him from obtaining and maintaining substantially gainful employment.  In this regard, the Board notes that the Veteran is currently employed as a truck driver and he has not suggested, nor does the evidence show, that his current employment is marginal.  As such, further consideration of Rice is not warranted.  

III.  Reopening Claim

Prior Decision

The claim of service connection for a low back disorder was denied in a September 2004 rating decision.  The claim was denied on the basis that no current disability was shown. 

No correspondence was received from the Veteran and no additional evidence was received within one year of the September 2004 rating decision.  Thus, the claim became final as to all evidence then of record.  See 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.156(b), 20.201, 20.302; 20.1100, 20.1103; see also Robinson v. Shinseki, 557 F.3d 1355, 1361 (Fed. Cir. 2009). 

New Evidence

Where a claim of entitlement to service connection has been previously denied and that decision has become final, the claim can be reopened and reconsidered only if new and material evidence is presented as to that claim.  38 U.S.C.A. § 5108 (West 2014).  The regulatory requirement that the new evidence must raise a reasonable possibility of substantiating the claim "must be read as creating a low threshold."  Shade v. Shinseki, 24 Vet. App. 110, 117 (2010).  In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to why the claim was last denied.  Id. at 118.  Rather, VA should ask whether the newly submitted evidence, combined with VA assistance and considering alternative theories of entitlement, can reasonably substantiate the claim.  Id.  Newly submitted evidence is presumed to be credible for the purpose of determining whether evidence is sufficiently new and material.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  

The Board recognizes that the RO has already reopened the Veteran's claim of entitlement to service connection for a low back disorder, and denied it on the merits.  Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim.  Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 

Since the September 2004 rating decision, new evidence added to the record consists of lay statements, VA treatment records, and a VA examination report dated in February 2012 to include an April 2012 addendum opinion.  The February 2012 examination report indicates the presence of a lumbar spine disability.  This  was not previously submitted to agency decision makers, and bears directly and substantially upon the specific matter under consideration.  Furthermore, the new evidence is neither cumulative nor redundant, and by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim.  38 C.F.R. § 3.156(a); Shade.  Accordingly, the claim is reopened.  


ORDER

Entitlement to an initial evaluation in excess of 50 percent for depressive disorder is denied.

Entitlement to an evaluation in excess of 20 percent for a cervical spine disability is denied.

New and material evidence has been received to reopen the claim of entitlement to service connection for a low back disorder; to that extent only, the appeal is granted.





REMAND

With respect to the lumbar spine claim, there is some confusion in the record as to the nature of the claimed condition.  More specifically, the body of the February 2012 examination report reflects the view the Veteran did not currently have, and never had a thoracolumbar spine condition.  It concludes, however, by indicating there is a condition that is muscular in origin that is likely due to "repeated strain with rotary body turns compensating for limited cervical mobility."  Shortly thereafter, an April 2012 opinion from another VA medical provider indicated that because the Veteran's lumbar strain was muscular in origin, it would not be related to the cervical spine.  

Both opinions seem to attach some significance to the muscular nature of the Veteran's lumbar complaints, but come to widely different conclusions.  Clarification is needed to ascertain whether the Veteran has an ongoing disability in the low back region of his anatomy, and if so, its relationship to his service connected cervical spine arthritis.  

The Veteran contends that his left shoulder disorder is related to his service-connected cervical spine disability.  The Veteran was provided with a VA examination of the left shoulder in February 2012.  The VA examiner noted that the Veteran had a history of a left shoulder arthroscopic surgery in January 2012.  She opined that it is less likely than not that the Veteran's left shoulder tendonpathy is due to his service-connected cervical spine disability.  In an April 2012 addendum opinion, the examiner opined that the Veteran's bilateral upper extremity radiculopathy is related his non-service connected shoulder injury.  The VA examiners did not discuss whether the left shoulder tendonpathy to include radiculopathy was aggravated by the service-connected cervical spine disability.  Thus, a remand is necessary for further development on the issue of whether the Veteran is entitled to service connection for left shoulder tendinopathy on this basis.  See El-Amin v. Shinseki, 26 Vet. App. 136 (2014).  

Additionally, the April 2014 rating decision granted the Veteran's claim for service connection for depressive disorder and assigned a 50 percent disability rating effective June 17, 2011.  Subsequently, the Veteran submitted an August 2014 statement indicating disagreement with the assigned rating and effective date.  However, no statement of the case (SOC) has been issued regarding the issue of entitlement to an earlier effective date.  Under the circumstances, the Board is obliged to remand this issue to the RO for the issuance of an SOC to the Veteran. Manlincon v. West, 12 Vet. App 238 (1999).  

Accordingly, the case is REMANDED for the following action:

1.  Issue a SOC with respect to the NOD filed as to entitlement to an earlier effective date for the grant of service connection for depressive disorder.  The Veteran should additionally be informed that in order to perfect an appeal of this issue to the Board, he must file a timely and adequate substantive appeal following the issuance of the SOC.  

2.  Obtain any outstanding VA medical records that are relevant to the Veteran's left shoulder disorder and low back complaints.  If no relevant records exist, then the claims file should be annotated to reflect such and the Veteran notified. 

3.  With respect to the shoulder claim, after obtaining any outstanding treatment records and incorporating them into the claims file, return the claims file to the examiner who provided the February 2012 medical opinion.  If that VA examiner is not available, obtain a medical opinion from another qualified person.  If an additional examination is deemed necessary to respond to the request, one should be scheduled. 

After reviewing the claims file and conducting any necessary examination of the Veteran, the reviewer/examiner should discuss whether it is at least as likely as not that the Veteran's left shoulder tendinopathy or other shoulder condition is aggravated by his service-connected cervical spine disability. 

The examiner is advised that the term "aggravation" is defined for these purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms.  If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation.

The examination report or addendum opinion should include a complete rationale for all opinions expressed. 

4.  The Veteran should be scheduled for an examination of the low back region of his anatomy, and for any and all chronic ongoing disability/ies identified, (whether muscular or of the bones or nerves or otherwise), the examiner should express an opinion as to whether it was caused by the Veteran's service connected cervical spine arthritis, or is aggravated by the cervical spine arthritis.  A complete rationale for any opinion provided should be expressed.  

5.  Then readjudicate the issues of entitlement to service connection for a left shoulder disorder and a low back disorder.  If any benefit perfected for appeal remains denied, return it to the Board after furnishing the Veteran and his representative with any appropriate Supplemental Statement of the Case and affording them the opportunity to respond.

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 that are 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.A. §§ 5109B, 7112 (West 2014).



____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs