Citation Nr: 1743871	
Decision Date: 09/29/17    Archive Date: 10/10/17

DOCKET NO.  09-47 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for a right jaw disability.  

2. Entitlement to service connection for a right ankle disability. 

3. Entitlement to service connection for a left ring finger disability.

4. Entitlement to service connection for left piriformis syndrome, to include as secondary to the service-connected low back disability.

5. Entitlement to an initial rating in excess of 10 percent, effective prior to January 19, 2016, a rating in excess of 30 percent effective from January 19, 2016, and a rating in excess of 70 percent, effective from November 23, 2016, for a psychiatric disability.  

6. Entitlement to an initial rating in excess of 10 percent, prior to January 19, 2016, for a low back disability.

7. Entitlement to a rating in excess of 40 percent, effective from January 19, 2016, for a low back disability.

8. Entitlement to an initial compensable rating prior to November 26, 2012, a rating in excess of 30 percent, effective from November 26, 2012, and a rating in excess of 40 percent, effective from January 19, 2016, for chronic headache syndrome, migraine and tension components.

9. Entitlement to an initial compensable rating for right shoulder keloids.

10. Entitlement to an initial compensable rating for left shoulder keloids.

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


REPRESENTATION

Appellant represented by:	John S. Berry, Esq.


ATTORNEY FOR THE BOARD

D.M. Casula, Counsel


INTRODUCTION

The Veteran served on active duty from December 2002 to December 2006. 

These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision by the Denver, Colorado Department of Veteran Affairs (VA) Regional Office (RO) that, in pertinent part, granted service connection for major depressive disorder, recurrent with panic disorder without agoraphobia, claimed as panic attacks, depression and sleep disturbance, and assigned a 10 percent rating; granted service connection for thoracolumbar strain with degenerative disc disease of the lumbar spine, and granted a 10 percent rating; granted service connection for, and assigned a 0 percent rating; granted service connection for keloid, right shoulder, and keloid, left shoulder, and assigned 0 percent (noncompensable) ratings for each, with all grants effective from February 14, 2008; and denied service connection for temporomandibular joint right capsulitis, right ankle sprain, and left ring finger disability.  This matter further comes before the Board from a November 2013 rating decision in which the RO denied service connection for a left leg disability as secondary to the service-connected low back disability.  Jurisdiction in this matter is currently with the Montgomery, Alabama RO.

By January 2014 rating decision, the RO granted a 30 percent rating for chronic headache syndrome, migraine and tension components, effective from November 26, 2012.  By January 2016 rating decision, the RO granted a 40 percent rating for chronic headache syndrome, migraine and tension components, effective January 19, 2016; and granted a 30 percent rating for major depressive disorder, recurrent with panic disorder without agoraphobia, claimed as panic attacks, depression and sleep disturbance, effective from January 19, 2016.  

In September 2016, the Board issued a decision which, in pertinent part, denied service connection for a right jaw disability and for a right ankle disability, and remanded the following issues for further development:  entitlement service connection for a left finger disability and entitlement to increased staged ratings for a psychiatric disability, increased staged ratings for a low back disability, increased staged ratings for a headache disability, and compensable ratings for right and left shoulder keloids.  

The record reflects that the Veteran appealed the portion of the Board's September 2016 decision which denied service connection for right jaw disability and right ankle disability, to the United States Court of Appeals for Veterans Claims (Court).  In April 2017 the Court issued an Order granting the Joint Motion for Partial Remand (JMPR) filed by counsel for both parties, vacating the portion of the Board's September 2016 decision which denied service connection for right jaw disability and right ankle disability, and remanding the matter to the Board for compliance with the Joint Motion.  

By May 2017 rating decision, the RO granted a 70 percent rating, effective from November 23, 2016, for major depressive disorder, recurrent with panic disorder without agoraphobia, claimed as panic attacks, depression and sleep disturbance.  

The Board notes that the Veteran has several pending claims that the RO currently has jurisdiction over; these claims appear to include:  entitlement to service connection for cervical strain; entitlement to an initial compensable rating for right hip strain; entitlement to an initial compensable rating for right knee strain; entitlement to an earlier effective date for the grant of service connection for radiculopathy of the left lower extremity, sciatic nerve; entitlement to an earlier effective date for the grant of service connection for psychiatric disability; and entitlement to an earlier effective date for the grant of service connection for low back disability.  The RO has not certified the referenced issues to the Board, and consequently those issues are not before the Board at this time, but will be the subject of a later Board decision.

The issues of service connection for a right jaw disability, a right ankle disability, and left piriformis syndrome, entitlement to a rating in excess of 40 percent for a low back disability effective from January 19, 2016, and entitlement to a TDIU rating, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's left ring finger disability did not originate in service and is not otherwise etiologically related to service.

2. Resolving reasonable doubt in favor of the Veteran, prior to November 23, 2016, her service-connected psychiatric disorder was manifested by no more than mild occupational and social impairment with symptoms such as depression, anxiety, panic attacks, irritability, sleep difficulties, fatigue, low energy and motivation, symptoms controlled by continuous medication, occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; however, the competent evidence of record did not reflect panic attacks more than once a week, impairment of memory, judgment, or thinking, speech problems, hallucinations, or inappropriate behavior.

3. Effective from November 23, 2016, the Veteran's service-connected psychiatric disorder has been productive of no more than moderate to severe social and occupational impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; but not total occupational and social impairment.

4. Effective prior to January 19, 2016, the Veteran's service-connected low back disorder has been manifested by complaints of chronic pain, flexion limited to 65 degrees with pain at the end range of motion, and mild scoliosis shown on an x-ray, but did not result in incapacitating episodes having a total duration of at least four weeks but less than six weeks during the previous 12 months; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine; and neurological examinations were within normal limits.

5. The right shoulder keloid scars do not cause functional loss, are stable, not painful, and are superficial and measure no more than 53 square centimeters. 

6. The left shoulder keloid scars do not cause functional loss, are stable, not painful, and are superficial and measure no more than 53 square centimeters.


CONCLUSIONS OF LAW

1. A left ring finger disability was not incurred in or aggravated by the Veteran's active service.  38 U.S.C.A. § 1110 (West 2015); 38 C.F.R. § 3.303 (2016).

2. The criteria for an initial rating of 50 percent, but no more, effective prior to November 23, 2016, for a psychiatric disorder, have been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9434 (2016).

3. Effective from November 23, 2016, the criteria for a rating in excess of 70 percent for the Veteran's psychiatric disorder, have not been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 4.7, 4.130, DC 9434 (2016).

4. Effective prior to January 19, 2016, the criteria for an initial 20 percent rating for the Veteran's service-connected low back disability, have been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.71a, DCs 5237, 5243 (2016).

5. The criteria for an initial compensable rating for right shoulder keloids have not been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.118, DC 7805 (October 22, 2008).

6. The criteria for an initial compensable rating for left shoulder keloids have not been met.  38 U.S.C.A. § 1155 (West 2015); 38 C.F.R. § 4.118, DC 7805 (October 22, 2008).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Duty to Notify and Assist

VA has a duty to notify and assist claimants in substantiating claims for VA benefits.  See e.g. 38 U.S.C.A. §§ 5103, 5103A and 38 C.F.R. § 3.159.  For the issues decided in the instant document, VA provided adequate notice in letters sent to the Veteran in February 2008, July 2008, February 2009, and February 2013.

The Board also finds VA has satisfied its duty to assist the Veteran in the development of the claims.  VA has obtained all identified and available service and post-service treatment records for the Veteran, and VA examinations were conducted in October 2008, November 2008, May 2009, November 2012, January 2016, and November 2016.  Although the spine examinations do not provide range of motion in weight bearing and non-weight bearing and active and passive motion, the Board finds that it may nonetheless proceed to adjudication of the claim for a higher initial rating prior to January 19, 2016 as a new examination would not reveal such range of motion findings present in 2008, 2009, and 2014.  See Correia v. McDonald, 28 Vet. App. 158 (2016).  It appears that all obtainable evidence identified by the Veteran relative to her claims has been obtained, and neither she nor her representative has identified any other pertinent evidence which would need to be obtained for a fair disposition of this appeal.  Also, neither the Veteran nor her representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).  

In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to her claims.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

II. Service Connection Claim for Left Ring Finger

Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  

In order to prevail on the issue of service connection, there must be medical evidence of a (1) current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury.  Hickson v. West, 12 Vet. App. 247, 253 (1999). 

The existence of a current disability is the cornerstone of a claim for VA disability compensation.  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  VA is not generally authorized to grant service connection for symptoms alone, such as pain, without an identified basis for the symptoms.  Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part, vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001).  

Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation.  38 U.S.C.A. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).  Although lay persons are competent to provide opinions on some medical issues, some medical issues fall outside the realm of common knowledge of a lay person.  See Kahana v. Shinseki, 24 Vet.App. 428, 435 (2011).  

With regard to the claim for a left ring finger disability, STRs show that a defect was noted on the Veteran's service entrance examination, but was considered non-disabling.  Some pathology (swelling) was also noted during service.  

On a VA DBQ (disability benefits questionnaire) examination in November 2016, it was noted that the Veteran did not have a current diagnosis associated with the claimed left ring finger condition.  It was noted that the Veteran stated she did not have any injury or worsening of her left ring finger condition either during or after active duty.  It was also noted that the Veteran declined the examination and no medical opinion was rendered.  

As noted above, the threshold requirement for service connection to be granted is competent evidence of the current existence of the claimed disorder.  See Brammer v. Derwinski, supra.  Review of the competent evidence of record, however does not show any current left ring finger disability or diagnosis.  Additionally, the Veteran reported no injury or worsening of her left ring finger condition during or after service.  As the Veteran does not have a current left ring finger disability, service connection is not warranted.  The preponderance of the evidence is therefore against the claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for a left ring finger disability must be denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

III. Increased Rating Claims

Disability evaluations are determined by application of the VA Schedule for Rating Disabilities, 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.  Each disability must be viewed in relation to its history and there must be emphasis upon the limitation of activity imposed by the disabling condition.  38 C.F.R. § 4.1.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work.  38 C.F.R. § 4.2.  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7. 

Where entitlement to compensation has been established and a higher initial disability rating is at issue, the level of disability at the time entitlement arose is of primary concern.  Consideration must also be given to a longitudinal picture of the veteran's disability to determine if the assignment of separate ratings for separate periods of time, a practice known as "staged" ratings, is warranted.  See Fenderson v. West, 12 Vet. App. 119 (1999).  Staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Psychiatric Disorder

The Veteran's service-connected psychiatric disorder, which encompasses major depressive disorder, anxiety, and panic, has been rated under Diagnostic Code (DC) 9434, which provides that a 10 percent disability rating is assigned for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous mediation.  A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as:  depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events).  38 C.F.R. § 4.130, DC 9434. 

A 50 percent rating is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereo-typed 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, and difficulty in establishing and maintaining effective work and social relationships. Id.  A 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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); and the inability to establish and maintain effective relationships.  Id.

A 100 percent rating for PTSD requires 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; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  Id. 

When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the capacity for adjustment during periods of remission.  The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner's assessment of the level of disability at the moment of the examination.  When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment.  38 C.F.R. § 4.126.

The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations.  Analysis should not be limited to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the rating criteria in determining the level of occupational and social impairment.  Mauerhan v. Principi, 16 Vet. App. 436 (2002).

Review of the record shows that the Veteran's psychiatric disorder has encompassed several diagnoses including major depressive disorder, panic disorder, and generalized anxiety disorder, and has been rated as 10 percent disabling, effective prior to January 19, 2016, 30 percent disabling effective from January 19, 2016, and 70 percent disabling, effective from November 23, 2016.

In considering whether the Veteran's psychiatric disorder warrants the grant of higher ratings for each staged rating, after reviewing the competent evidence of record, including VA treatment records, VA examination reports, and the Veteran's statements, the Board concludes that an initial 50 percent rating is warranted prior to November 23, 2016, and a rating in excess of 70 percent is not warranted, effective from November 23, 2016.  

Review of the record prior to November 23, 2016, shows that on a VA treatment record dated in July 2008, the Veteran reported she had recent problems with sleeping and was having panic attacks approximately once a week.  In August 2008, she reported she was having panic attacks more frequently, and was taking medication consistently and finding it helpful.  She denied suicidal or homicidal ideation or intent, and her mood and affect were anxious and depressed.  The diagnosis was panic disorder.

On a VA examination in October 2008, the Veteran reported she worked full time, Mondays through Fridays, from 7:30 a.m. until 4:00 p.m.  Her psychiatric symptoms included anxiety and difficulty with sleep.  She recently had a medication added for treatment of TMJ which helped her fall asleep more easily.  She reported that her panic attacks began in 2004 when her husband was deployed, and she was given Prozac.  She tried to taper this medication when she was discharged from service, but the panic attacks returned so she reused the medicine.  With Prozac, the Veteran currently had a panic attack once per week or so, and the symptoms were much milder relative to the past, and usually lasted a 1/2 hour or 45 minutes.  Due to her anxiety, she avoided large crowds.  It was noted that she became extremely depressed if she thought about her family of origin and the circumstances under which she was raised.  She had low energy, and complained of chronic fatigue and low motivation.  She denied suicidal ideation or intent, and denied hallucinations.  She was extremely socially insecure.  On mental status examination, she was found to be cooperative and her mood was depression and affect primarily restricted, with some occasional appropriate tearfulness.  Her memory and concentration levels were good.  It was noted that she worked as an x-ray technician at a nearby VA medical center.  She had a traumatic childhood with a great deal of turmoil, and she began having symptoms of depression and anxiety in service.  It was noted that her symptoms were most consistent with a panic disorder, without agoraphobia, which had been very well managed by Prozac, and with major depressive disorder, recurrent.  She was able to maintain activities of daily living.  Her symptoms had been continuous, her thought processes and communication were not significantly impaired, and her social functioning was somewhat impaired by her isolative behaviors due to depression.  She was assessed as employable from a psychiatric standpoint but would do best in setting in which she had little contact with the public and loose supervision due to her anxiety and depression symptoms.  A GAF score of 54 was assigned.  The examiner opined that he Veteran had occupational and social impairment due to mild symptoms which may decrease work efficiency and the ability to perform occupational tasks during periods of stress.  The examiner opined that the Veteran did require continuous medication.  

On a VA examination in May 2009, the Veteran reported she experienced suicidal thoughts 4 to 5 items per week, stating she did not care what happens to her sometimes.  She did not have any plans to hurt herself and stated she would not hurt herself.  She stated that her husband was very supportive of her and understanding of her depressive disorder.  She was previously on Prozac, but stopped the medication when she became pregnant five months prior.  She described her marriage as good.  She felt that her depressive symptoms had increased with her pregnancy.  She was unable to articulate any hobbies or interests.  She was employed as an x-ray technician since 2007.  She reported she had a short temper and little patience at work.  She missed approximately two days per month due to headaches.  On mental status examination, she had a tearful affect, her tone and rate of speech were normal, and eye contact was good.  She related her history in a logical and sequential manner and did not appear to be responding to internal stimuli.  She endorsed the following symptoms:  depressed mood most of the day and nearly every day, insomnia with middle of the night wakening, feeling worthless, decreased self-esteem, suicidal ideations, self-isolative behavior, feelings of hopelessness, and lack of motivation.  She reported having panic attacks approximately 3 times a week.  She had been able to sustain successful employment since 2007, but reported some on the job difficulties, to include missed work due to her depressive symptoms.  The examiner concluded that the Veteran appeared to have mild symptoms of depression and panic disorder, which included depressed mood most of the day, nearly every day.  She reported having panic attacks approximately 3 times per week.  Her long term memory, attention, and concentration, were intact.  A GAF score of 55 was assigned.  With regard to the severity of the Veteran's symptoms, the examiner noted that the Veteran's depressive and anxiety impairment signs and symptoms were transient or mild and decreased work efficient and ability to perform occupational tasks only during periods of significant stress.  The examiner noted that the Veteran was able to maintain activities of daily living, had not experienced significant trauma in the last year, and there had not been a worsening of her condition.  Her symptoms were continuous.  She was not currently in treatment and not taking medications for mental health symptoms due to her current pregnancy.  Her social functioning was assessed as impaired, as she engaged in self-isolative behaviors.

On a VA DBQ examination in November 2012, the diagnoses were listed as major depressive disorder, recurrent, in partial remission, and generalized anxiety disorder.  It was noted that the Veteran currently denied symptoms of panic disorder, and denied having recurrent, unexpected panic attacks and persistent worry about having additional attacks.  A GAF score of 67 was assigned.  The examiner summarized the Veteran's impairment as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and the ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication.  The Veteran reported that she had experienced marital problems and divorced in February 2011, after 6.5 years of marriage, and she had full custody of her 3 year old son.  She lived with her son and was involved in a new romantic relationship for the past two months.  She reported having limited social supports and just a few friends.  For the past 5 years, she had been employed full time as an x-ray technician.  She occasionally needed to take time off work due to low back pain, but denied missing work for any mental health concerns.  She reported occasional interpersonal difficulties in the work place which she felt had not been satisfactorily addressed and this led her to feel irritable and depressed.  On mental status examination she had inconsistent eye contact, and was tearful and crying at times.  Her mood was fair, and her affect restricted but congruent with mood.  She had no suicidal or homicidal ideation.  She denied delusions and hallucinations.  Her insight, judgement, and impulsivity were intact.  She was currently taking Wellbutrin and Prozac for depression, which helpful in controlling her depression.  She continued to endorse anhedonia, decreased appetite, increase guilt, occasional hopelessness.  She denied sleep or concentration problems.  She endorsed continuing symptoms of anxiety, including excessive worrying, as well as irritability, fatigue, and restlessness/tension..    

On a VA DBQ examination dated in January 2016, the Veteran's diagnosis was listed as major depressive disorder with anxious distress.  The examiner summarized the impairment with regard to her mental disorder 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.  She reported she lived with her husband and 2 children.  She had been married for two years and described the marriage as okay and that they fight a lot.  She reported she got stressed out and would shut down.  She was not close with her family and did not  have much contact with them.  She had not made any friends since moving to Alabama, and denied having hobbies.  She indicated that if she was not at work, she was usually at home and might watch television or sleep.  She worked as an x-ray technician for VA for 6 years, but did not like having to deal with patients.  She left that job in 2013 to take a job with NASA, where she now worked as an accountant for the past 2 years, but she did not like her job because she was required to give presentations which caused her anxiety and panic attacks.  She was told her work appraisal would be lower if she did not give a presentation and she wanted to move to a different department that did not have a presentation requirement.  She was currently taking classes for a Masters in strategic management.  Her psychiatric symptoms included depressed mood, anxiety, panic attacks weekly or less often, and chronic sleep impairment.  On mental status examination her mood was depressed, mad and sad, her affect was full and labile, and her thought processes were unremarkable.  She described intermittent suicidal ideation, particularly after she and her husband got into a fight, but denied current suicidal ideation, plan, or intent.  She took Benadryl most nights to help her sleep, but she would ruminate about events which interfered with her sleep.  Her energy was reduced.  She reported chronic symptoms of depression which were mild to moderate in severity.  She experienced a daily depressed mood, diminished interested and pleasure in activities, insomnia, fatigue/loss of energy, and poor concentration/indecisiveness.  She described panic attacks 2 to 3 times a week that usually occurred in public when she had to give a presentation.  She tended to demonstrate a lot of black/white thinking, and was intolerant of gray areas.  She wanted everything to be in its place at home and got angry if something was not where it belonged.  

VA treatment records showed that in April 2016, the Veteran was seen for a maternity psychosocial assessment.  On mental status examination, she was noted to have an appropriate mood and affect.  She had no current suicidal ideation, but 4 weeks prior thought of crashing her car.  She was excited about her pregnancy.  She reported she had a poor relationship with her father, but a good relationship with her mother.  She described her spouse as supportive.  It was noted that she was working full time as an accountant.  In June 2016, the Veteran was seen for group counseling for anger management.  She denied suicidal ideation, intent, or plan.  

Considering the record prior to November 23, 2016, the Board notes that the Veteran underwent several VA examinations and had ongoing mental health treatment, including being prescribed continuous mediation to control her symptoms, except for periods when she was pregnant,  A review of the objective evidence of record from this period tends to show the Veteran's psychiatric symptoms of such a magnitude to produce some occupational and social impairment, with reduced reliability and productivity due to symptoms such as flattened affect, panic attacks, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships.  She has also suffered from other symptoms which have been attributed to her variously diagnosed psychiatric disorder including depression, anxiety, panic, low motivation and energy, diminished interested in activities, panic attacks of varying frequency, anhedonia, difficulty sleeping, irritability, and isolative behaviors.  The Board therefore concludes that in considering all of her symptomatology attributed to her psychiatric disorder, and the resulting occupational and social impairment, that her service-connected psychiatric disorder prior to November 23, 2016, more closely resembles the 50 percent level of impairment, with consideration of her ability to maintain some social and occupational relationships.  38 C.F.R. § 4.7.  

In order for an even higher rating of 70 percent to be assigned prior to November 23, 2016, however, the evidence of record would have to show psychiatric symptoms of such a magnitude to produce occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms such as those outlined in the criteria for 70 percent under DC 9434.  In that regard, the Board notes that the treatment records and the VA examinations do not show most of the typical symptoms listed in the criteria for a 70 percent rating, nor are similar symptoms shown.  Mauerhan, supra. 

With regard to employment, the Board notes that the Veteran has maintained full time employment during this period, albeit with difficulties.  She was initially working as an x-ray technician and left that job because patient contact was difficult.  She then obtained a job as an accountant in which she was required to give presentations which caused her anxiety and panic attacks.  She was told her work appraisal would be lower if she did not give a presentation and she wanted to move to a different department that did not have a presentation requirement.  She was also taking classes for a Masters in strategic management.  Thus, the Board acknowledges that the Veteran's psychiatric symptoms have had a significant impact on her ability to work, however, she has been able to continue working. The Board makes this point not to penalize the Veteran for continuing to work; rather, the Veteran is to be commended for continuing to work despite the symptoms she has been experiencing. 

The Board also notes that the Veteran has exhibited social impairment due to her psychiatric symptoms.  In that regard, the record shows that she has maintained a relationship with her husband and kids, but feels distant from her kids, and she became more socially withdrawn.  She did not maintain consistent contact with her to her family members.  

As to the symptoms listed in the criteria for a 70 percent rating, with regard to suicidal ideation, a review of the objective medical evidence shows that the Veteran has primarily denied suicidal thoughts or ideation, except on a few occasions, including in May 2009 when she was off her medication and reported having suicidal thoughts 4 to 5 times per week, but did not have any plans to hurt herself and stated she would not hurt herself, and in January 2016 when she reported intermittent suicidal ideation, but denied current suicidal ideation, plan, or intent.  The Veteran has not obsessional rituals which interfere with routine activities, and her behavior has found to be appropriate on evaluations and examinations.  There is no indication that she cannot attend to her ADLs (activities of daily living).  There have never been any findings that her speech is illogical, obscure, or irrelevant. 

While the Veteran has exhibited depression and panic attacks throughout the period prior to November 23, 2016, there is no indication that she has near continuous panic or depression which affected her ability to function independently, appropriately, and effectively during this time period.  There have been no problems noted with the Veteran's impulse control, and no evidence of unprovoked irritability with periods of violence.  With regard to spatial disorientation, the Board notes that, on examinations, she has been found to be oriented.  She responded to questions appropriately, and was found to have no impairment of thought processes.  There has also been no indication at any time that she neglected her personal hygiene. 

With regard to difficulty in adapting to stressful circumstances, in this area the Veteran has reported problems.  She reported having problems with work and with being around others, and with other interpersonal areas.  Although she has reported problems with establishing and maintaining effective relationships, the evidence of record does not show that she was unable to establish or maintain any relationships, as she maintains a relationship with her husband and kids.  

The evidence as a whole demonstrates that the veteran's PTSD symptoms do not approximate the criteria for a 70 percent rating prior to November 23, 2016; however, it does appear that, with consideration of the doctrine of reasonable doubt, her symptoms approximate the criteria for a 50 percent rating.  38 C.F.R. § 4.7.  The evidence as to her impairment in work, family relations, judgment, thinking, and mood do not reflect that he has deficiencies in most areas, so as to support the assignment of a 70 percent rating for the period in question.  38 C.F.R. § 4.130. 

With regard to global assessment of functioning (GAF) scores, the Board notes that the veteran has been assigned scores of 54 and 55.  GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.  Carpenter v. Brown, 8 Vet. App. 240 (1995).  According to the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, 4th ed. (DSM-IV), a GAF score from 51 to 60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social or occupational functioning (e.g., few friends, conflicts with peers and co-workers).  A  provider's classification of the level of psychiatric impairment, whether by words or by a GAF score, is to be considered, but is not per se determinative of the percentage rating to be assigned as the rating depends on evaluation of all the evidence.  38 C.F.R. § 4.126; VAOPGCPREC 10-95.  In view of the foregoing, the Board concludes that the evidence as a whole, including VA examinations, VA treatment records, and the Veteran's statements, with application of the benefit-of-the-doubt rule, supports an increase to a 50 percent disability rating, but no higher, at any point prior to November 23, 2016.  Fenderson, supra. 

Review of the record on and after November 23, 2016, shows that on a VA examination in November 2016, the Veteran reported a full spectrum of depressive symptoms including a depressed mood, most of the day, nearly every day, to include feeling hopelessness; markedly diminished interested or pleasure in all activities or almost all activities; sleep disturbance, feelings of guilt, diminished ability to think or concentrate, and recurrent thoughts of death (multiple times a week but without active plan or intent).  She had marital problems with discussion of divorce, and a distant relationship with her sons due to amotivation and anergia.  Her mood was often depressed and irritable with frequent mood swings and passive suicidal ideation occurring at least twice a week, but no active suicidal ideation, plan, or intent.  She had paranoid ideation thinking her coworkers may be plotting against her and that she is being watched by a neighbor.  At work she had a tendency to become dissatisfied, and then anxious and overwhelmed.   She had shifted from working in auditing to general accounting due to anxiety and panic attacks associated with giving presentations, and was contemplating submitting a request to shift work areas again due to conflicts with 1 to 2 coworkers in her current work setting.  She dropped out of a Master's program with only 2 courses remaining due to attention and concentration problems which she feared would result in course failures.  The examiner found that the Veteran had probable maladaptive personality traits, as her presentation and interview were suggestive of significant paranoid personality traits and obsessive compulsive personality traits.  She reported felt distant from her sons and reported she had a hard time taking care of them when her husband was working late, reporting it was too stressful and she thought about committing suicide.  She had some contact with her mother and sister, usually just once every 2 weeks because she did not want them to know what was going on and wanted them to think she was okay.  She had no contact wither her father.  She socialized with some coworkers on the job, but nothing outside of work.  She no longer attended church, but her husband and children did.  She denied membership in any clubs or organizations, and her activities included watching television or taking a nap.  Her husband did the shopping, because she did not like being in a group of people when there is a crowd or lines are too long because it was overwhelming for her.  She denied personal hobbies or interests, and indicted her focus was on her kids and not on herself anymore.  She liked her job in accounting better because it was less stressful than her prior job, especially when patients told her they were suicidal and she did not know what to do because she was suicidal too.  She described her current job as okay, but had coworkers she did not get along with and had engaged in arguments and felt like she had to watch her back.  She denied missing work due to amotivation, anergia, or feeling overwhelmed.  She was not seen in the mental health clinic from March 2015 - 2016, but continued to get Prozac from a private physician.  She had resumed individual psychotherapy in June 2016, and was followed by the suicide prevention coordinator due to passive suicidal ideation.  She reported her husband had to call the crisis line several times.  

Further, on the VA examination in November 2016, the Veteran's psychiatric symptoms list included depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impaired abstract thinking, disturbances of mood and motivation, difficulty in establishing and maintain effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation.  Objectively, she had no psychomotor agitation or slowing. She was cooperative and her affect was moderately constricted and depressed.  She was tearful intermittently, and her current mood was irritated because she came late.  Her speech was unremarkable, her thought processes were logical and goal directed, there was no overt evidence of perceptual disturbance or gross cognition confusion.  Her insight and judgment appeared to be limited to fair.  She described having depressed mood more times than not, she continued to harbor a grudge against her husband's stepdaughter and at times wished she did not exist, her only enjoyment was television, her motivate was poor and had declined further since her miscarriage in April/May 2016, and reported she stayed in bed on days she was not working and her husband took care of the kids. She reported that on those days she only changed or showered if they were going out to eat, but she rarely agreed to go and her husband would take the kids without her.  She endorsed feelings of hopelessness related to her marriage and her husband's continued involvement with an adopted daughter.  She had passive suicidal ideation at least 3 times a week, but denied active ideation with plan or intent, but she had told her husband they needed to get a gun because of their neighbor hut her husband said they should not because she had said that gun would be the thing to kill her.  She reported irritability and anger all the time, and that she wished her husband's adopted daughter would disappear or die, but denied a specific plan or intent to cause her or others harm.  She reported problems with sleeping for 3 to 4 hours only, and described her daytime energy as fair.  She had social anxiety, had repeated thoughts about herself dying, and had OCD and perfectionist tendencies.  The examiner noted that the Veteran's comments during the examination depicted a general suspiciousness and mistrust of others, and she described herself as paranoid.  

Accordingly, for the period on and after November 23, 2016, the Veteran's psychiatric symptoms increased, and included depressed mood, anxiety, sleep impairment, diminished interest or pleasure in activities, panic attacks, feelings of guilt, diminished ability to think or concentrate, recurrent thoughts of death, disturbances of motivation and mood, isolating behavior, irritability, anger, paranoia, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation,.  After reviewing the record, however, the Board concludes that a 100 percent rating is not warranted for that period as the Veteran clearly does not have total social and occupational impairment due to her psychiatric symptoms. 

In that regard, the Board finds that there was no showing of 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; and memory loss for names of close relatives, or for the Veteran's own occupation or name.  Although the Veteran had significant difficulties in family relationships, she continued to maintain those relationships.  While she reported isolating behaviors, and her symptoms indicate significant social impairment, they do not result in total impairment.  Although on the VA examination in November 2016 it was noted that the Veteran had mild memory loss, at no point did the Veteran report, or the evidence show, memory loss so severe that she forgot names of close relatives, her occupation, or own name. Additionally, she was found to be well-groomed, and there was no evidence of hallucinations or homicidal ideation.  Further, although it was noted that she had passive suicidal ideation, this was clarified in the 2016 VA examination that the Veteran did not endorse active suicidal ideation, plan, or intent.  

With regard to occupational functioning, on the November 2016 VA examination, it was noted that the Veteran shifted from working in auditing to general accounting due to anxiety and panic attacks associated with giving presentations, and was contemplating a request to shift work areas again due to conflicts with 1 to 2 coworkers.  She also thought her coworkers may be plotting against her, and at work she had a tendency to become dissatisfied, and then anxious and overwhelmed.   Thus, although the Veteran clearly exhibited occupational impairment during this time period, she did not exhibit total occupational impairment.  

Considering all evidence of record dated from November 23, 2016, the Board finds the Veteran's level of symptomatology due to her psychiatric disorder is consistent with a finding of, at most, moderate to severe occupational and social impairment with deficiencies in most areas, which warrants the current 70 percent rating assigned.  See Fenderson, supra.  The evidence of record simply does not show total occupational and social impairment; thus, the Board finds that the criteria for a 100 percent schedular rating have not been met or approximated for period from November 23, 2106.  38 C.F.R. § 4.7. 

The Board also notes that the Veteran's lay statements have been considered in reaching these determinations.  The Veteran is competent to report her psychiatric symptoms.  See Jandreau v. Nicholson, 492 F.3d 1372  , 1366-67 (Fed. Cir. 2007). The Board also finds his statements to be credible and consistent with the evaluations assigned.  To the extent she argues her symptomatology is more severe, her statements must be weighed against the other competent evidence of record.  Here, the specific examination findings of trained healthcare professionals are of greater probative weight than the Veteran's general lay assertions.  Accordingly for the period prior to November 23, 2016, the Board finds that the preponderance of the evidence supports the grant of an initial 50 percent rating for the Veteran's psychiatric disorder, and is against assigning a rating in excess of 70 percent, effective from November 23, 2016.  38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, supra.

2. Low Back Disability, Prior to January 18, 2017

The Veteran's service-connected low back disorder encompasses thoraco-lumbosacral strain with degenerative disc disease (DDD) of the lumbar spine, and has been assigned a 10 percent initial rating, prior to January 19, 2016, and pursuant to DCs 5237 and 5243.  

DC 5237 pertains to lumbosacral strain, which is rated under the General Rating Formula for Diseases and Injuries of the Spine.  38 C.F.R. § 4.71a, DC 5237. DC 5243, which pertains to DDD, is rated under the General Rating Formula or the Formula for Rating IDS Based on Incapacitating Episodes, whichever results in the higher rating.  38 C.F.R. § 4.71a, DC 5243.

Under the Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, for a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, for a vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is assigned for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating will be assigned for unfavorable ankylosis of the entire thoracolumbar spine.  A 100 percent rating will be assigned for unfavorable ankylosis of the entire spine.  38 C.F.R. § 4.71a, DC 5237.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees.  The combined range of motion refers to the sum of forward flexion, extension, left and right lateral flexion, and left and right rotation, and the normal combined motion for the thoracolumbar spine is 240 degrees.  38 C.F.R. § 4.71a, Note (2).

Under the General Formula for Rating IDS Based on Incapacitating Episodes, a 10 percent rating is warranted for IDS with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent rating is warranted for IDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent rating is warranted for IDS with incapacitating episodes having a total duration of least four weeks but less than six weeks during the past 12 months.  A rating of 60 percent is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.

When assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must, in addition to applying scheduler criteria, also consider evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use.  38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-207 (1995).  

Review of the record prior to January 19, 2016, shows that on a VA examination in August 2008, the Veteran reported having chronic low back pain, which came on 3 times a week and may last for the whole day with a pain level of 6 out of 10 on the pain scale.  She did not have any incapacitating episodes in the past 12 months that required bedrest.  She reported she could stand all day, sit for a few hours, and walk on the treadmill for 20 minutes.  She reported pain across the lower back with no radiation to the legs.  She did not take mediation or wear a brace, and she was able to function in her usual occupation and did not miss any time from work due to her back.  Examination revealed mild scoliosis, no spasms, and no tenderness.  Active range of motion was to 82 degrees on flexion without pain, extension to 30 degrees without pain, right and left lateral bending to 20 degrees without pain, and right and left rotation to 30 degrees without pain.  Three repetitions of active range of motion with resistance di dot show any additional loss of range of motion due to painful motion, weakness, impaired endurance, incoordination, instability, or acute flares.  

On a VA examination in November 2012, the diagnoses included thoracolumbar DDD and DJD (degenerative joint disease) without radiculopathy.  The Veteran reported ongoing back pain, and that the Thursday prior she had developed a new symptom of acute numbness and paresthesia of the left lower leg.  She reported constant low back pain radiating to the left buttock and down her leg, and her pain was 8 out of 10 in severity, which reduced to 6 out of 10 with Motrin.  She had no incontinence of bladder or bowel.  She reported flare-ups, and described the impact as having paresthesia's and numbness in the left leg.  Range of motion testing revealed that flexion was to 90 degrees or greater with pain at the end of the range; extension to 30 degrees with pain at the end of the range; right and left lateral flexion to 30 degrees and right and left rotation to 30 degrees with no objective evidence of painful motion.  She was able to perform 3 repetitions of range of motion testing without any additional limitation in motion.  Functional impairment included pain on movement.  Examination revealed no guarding or muscle spasm, no atrophy, and sensory examination was mostly within normal limits, except she had subjective decrease in sensation in the left lateral 5th toe and calf.  She had no radicular pain or signs or symptoms of radiculopathy.  An MRI showed DDD and mild DJD with subtle bilateral effacement of the S1 nerve roots.  It was noted that her lumbar spine condition impacted her ability to work, as she reported she stayed home from work for back pain 12 days in the past year, she did not lift more than 20 lbs. due to her back, and when she stood for more than one hour her back hurts.  

On a VA examination in March 2013, the diagnosis was thoracolumbar strain with degenerative disc disease and L5-S1 herniation without radiculopathy.  She reported she works as an x-ray technician and cannot forward flex without pain when she x-rays knees, but she had missed no days of work.  She took Motrin twice a day, and had started Gabapentin which did not give her any relief.  Range of motion testing revealed flexion to 65 degrees with pain at the end range, extension to 30 degrees with no objective evidence of pain, right lateral flexion to 25 degrees, left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees, with no pain.  She was able to perform repetitive-use testing with 3 repetitions, but had no additional limitation in range of motion of the thoracolumbar spine.  She had functional impairment that was described as pain on movement.  Examination revealed no guarding or muscle spasm, no atrophy, and sensory examination was within normal limits, and she had no radicular pain or signs or symptoms of radiculopathy.  She reported that her back condition impacted her work because of the left sided pain over the sacroiliac/piriformis area hurt when she flexed.  The examiner noted that although there as limitation in function due to pain, there would not be additional decreases in range of motion with use of the back, and her forward flexion was limited because it caused pain at the piriformis muscle, not because it caused back pain.  

The Board finds that prior to January 19, 2016, and resolving reasonable doubt in favor of the Veteran, a 20 percent rating is warranted for the service-connected low back disability.  In that regard, the objective evidence of record shows that on the most recent VA examination flexion was to 65 degrees with pain at the end of the range, and that in 2008, an x-ray showed she had mild scoliosis.  It was also noted on the 2012 and 2016 VA examinations that the Veteran reported she took Motrin twice a day, and the Motrin reduced her pain from 8 to 6 on the pain scale.  Based on the foregoing, the Board concludes that an initial 20 percent rating is warranted for the low back disability for the period prior to January 19, 2016.  A rating in excess of 20 percent for the low back disability is not, however, warranted as the competent evidence does not demonstrate forward flexion 30 degrees or less; or incapacitating episodes lasting at least four weeks but less than six weeks during the past 12 months.  With regard to limitation of motion, the Board concludes that the objective findings for flexion do not approximate the criteria for a 40 percent rating, even considering the effects of pain and other factors.  Moreover, there have been no findings of incapacitating episodes.  Thus, based on the foregoing, the Board finds that the criteria for a higher rating of 20 percent for the service-connected low back disability have not been met or approximated at any time prior to January 19, 2016, and has never been manifested by complaints or objective findings or functional impairment that would warrant a rating in excess of 20 percent.  Rather, the clinical and reported findings more nearly approximated the criteria for a 20 percent rating.  38 C.F.R. § 4.7. 

The Board has considered the Veteran's complaints of low back pain and reported limits, as well as potential additional limitation of functioning resulting therefrom.  While she has exhibited pain on motion and reported flare-ups of pain in the lower extremities, she was able to perform repetitive motion testing with no additional degree of limitation.  Additionally, the VA examiners found no additional functional limitations due to the Veteran's low back symptoms.  Thus, there is insufficient objective evidence to conclude that the Veteran's back pain and other problems have been associated with such additional functional limitation as to warrant a rating in excess of 20 percent.  38 C.F.R. §§ 4.40, 4.45, DeLuca v. Brown, supra.  The Board also notes that prior to January 19, 2016, there was no objective evidence of other related neurological abnormalities.

Accordingly, based on the foregoing, the Board finds that an initial 20 percent rating, but no more, is warranted prior, effective prior to January 19, 2016, for the Veteran's low back disability.  


6. Right and Left Shoulder Keloids

The Veteran's keloid scars of the right and left shoulders have been assigned non-compensable (0 percent) disability ratings, pursuant to 38 U.S.C.A. § 4.118 , DC 7802.  Scars may be rated under DCs 7800-7805. 

DC 7801 provides ratings for scars, other than the head, face, or neck that are deep and nonlinear.  Scars that are deep or that cause limited motion in an area or areas exceeding six square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.), are rated 10 percent disabling.  Scars in an area or areas exceeding 12 square inches (77 sq. cm.), but less than 72 square inches (465 sq. cm.), are rated 20 percent disabling.  Note (1) to DC 7801 provides that a deep scar is one associated with underlying soft tissue damage.  Note (2) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Id. 

DC 7802 provides ratings for scars, other than the head, face, or neck that are superficial and nonlinear.  Superficial scars that consist of an area or areas of 144 square inches (929 sq. cm.) or greater are rated 10 percent disabling.  Note (1) to Diagnostic Code 7802 provides that a superficial scar is one not associated with underlying soft tissue damage.  Note (2) provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Id.  

DC 7804 provides a 10 percent rating for one or two superficial scars that are painful or unstable on examination.  Three or four superficial scars that are painful or unstable are rated as 20 percent disabling.  Five or more scars that are unstable or painful are rated as 30 percent disabling.  Note (1) to Diagnostic Code 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) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under this Diagnostic Code, if applicable. 

Under DC 7805, which rates scars and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804, disabling effects not considered in a rating provided under the aforementioned diagnostic codes are to be evaluated under an appropriate diagnostic code.  Id.

The Veteran maintains that the symptomatology associated with her keloid scars of the right and left shoulders warrant a compensable rating. 

On a VA examination in August 2008, the Veteran reported she had a small, tiny pimple that was itchy and she started scratching the left shoulder and then again on the right shoulder, and this gradually developed a keloid, which was initially noted in 2003.  She was treated with steroid and lidocaine injections, which initially made them smaller, but then became bigger.  It was noted that she had the keloid currently on the left and right shoulder, but she did not complain of pain or stiffness with the shoulder, and she denied an limitation of function of either shoulder.  Examination of the right shoulder revealed 3 keloid scars on the top, with the sizes listed as 1 x 5 millimeters (mm.), 1 centimeters (cm.) x 6 mm., and 3 cm. x 8 mm.  The scars were hyperpigmented, somewhat elevated, non-painful, non-tender, and shiny.  There was no adherence to the underlying soft tissues, no induration, no edema, and no pain on manipulation.  The left shoulder scar measured 3 cm. x 2 cm. and was flat but irregular in shape, and was noted to be brown, and non-painful and non-tender on manipulation.  There was no ulcer, and it was smooth and shiny with no adherence to the underlying tissue, and no induration or superficial scar.  It was noted that the scars did not affect the use of the upper arm on the right or left side.

In conjunction with her claim, the Veteran was afforded other VA examinations in November 2012 and in January 2016, each of which showed essentially the same severity of the Veteran's keloid scars of the shoulders as noted on the most recent VA examination in November 2016.  The Board notes that there are also photographs of record of the left shoulder.

On the VA examination in November 2016, it was noted that the Veteran had scars on each shoulder due to injections to acne comedomes during service.  It was noted that there was no change since the January 2016 examination.  It was noted that the scars itched at times, but there was no pain.  Examination of the right shoulder showed it was not affected.  Examination of the left shoulder showed several scars, one which looked irregular, one looked like a pimple, and one looked like a mole.  The sizes of the keloid scars was described as:  3.5 x 1.6 centimeters (cm.), 1 x .8 cm., .7 x .4 cm., 1.5 x. .8 cm., 1 x .3 cm., .5 x .3 cm., and .4 x .5 cm., and the approximate total area was 7.98 square cm.  It was noted that scars did not limit any functions, and did not impact her ability to work.

In a statement dated in November 2016, the Veteran contended that when she underwent a VA examination for her shoulders (for an unrelated claim), the examiner did not check her scars because it was just January when they were last evaluated, "despite all the other keloids that are getting bigger around them".  The Board notes, however, that the Veteran did undergo a VA examination in November 2016, and there is no indication that the keloid scars had changed in size since the prior January 2016 VA examination.  

In considering the Veteran's claim, the Board finds that as the Veteran's keloid scars do not measure at least 929 square cms., either separately or combined, her keloid scars of the right and left shoulder do not warrant compensable ratings under DC 7802.  The Board has considered whether any alternate Diagnostic Codes might entitle the Veteran to a higher rating.  38 C.F.R. § 4.118, DC 7801 and 7804 provide criteria for evaluations based on deep, unstable or painful scarring and scarring causing limitation of motion of the affected part.  As noted above, the Veteran's residual scars were found to be superficial, and not painful or tender, or affecting any motion of the shoulders.  Thus, she is not entitled to compensable ratings for keloid scars of the right and left shoulder under any other potentially applicable Diagnostic Code.  In summary, for the reasons and bases set forth above, the Board concludes that the preponderance of the evidence is against the assignment of an initial compensable ratings for the service-connected right and left shoulder keloids.  Consequently, the benefit-of-the-doubt rule does not apply, and the claim must be denied.  38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017).







ORDER

Service connection for a left ring finger disability is denied.

Effective prior to November 23, 2016, an initial rating of 50 percent for a psychiatric disorder is granted, subject to the law and regulations governing payment of monetary benefits.

Effective from November 23, 2016, a rating in excess of 70 percent for the Veteran's psychiatric disorder is denied.

Effective prior to January 19, 2016, an initial 20 percent rating for a low back disability, is granted, subject to the law and regulations governing payment of monetary benefits.

An initial compensable rating for right shoulder keloid scars is denied.

An initial compensable rating for left shoulder keloid scars is denied.


REMAND

1. Right Jaw Disability 

As noted above, this issue was addressed in the JMPR filed in April 2017.  Therein, the parties noted that the Board denied service connection for the Veteran's jaw disability, because the evidence did demonstrate the presence of a current disability.  The parties noted that, contrary to the Board's observation, the October 2008 VA examination report showed that Veteran's jaw had a "[m]aximum opening [of] 34mm, limited to 31 mm with pain.", and that the examiner diagnosed "[d]ecreased range of motion."  The parties further noted that VA regulations define disability of the jaw based upon the degree to which jaw articulation is limited, in Diagnostic Code 9905, and that the Board, in finding that the October 2008 VA examination report contained no evidence of current disability, appears to have overlooked the actual findings contained in that report.  

STRs show that in January 2005, the Veteran was fitted for an occlusal night guard.  In December 2006, she was seen for right jaw pain diagnosed as right temporomandibular joint (TMJ) capsulitis, following a root canal.  

Post-service records show that in August 2008, the Veteran was noted to have bruxism.  In July 2010, she complained of left TMJ pain.

On the October 2008 VA examination, the Veteran complained of right-sided TMJ pain and headaches.  She denied history of trauma, and said she had been experiencing right-sided TMJ pain and headaches for the last two years.  She considered this a daily pressure sensation and heard clicking on the right TMB, and reported she had previous clicking, followed by limitation of the jaw opening in the past.  She related that she underwent a root canal procedure in service, but did not have a crown placed at the time.  She reported that the dentist told her she would need one, but then inexplicably the doctor marked on her DD Form 214 that all dental care was completed.  She indicated that consequently she could not be provided a crown at a VA dental clinic.  She reported that she clenches her teeth and grinds them at night.  She had been using her night guard therapy for the past three weeks, but her headache pain was about the same.  On physical examination, the examiner noted a maximum opening of 34 mm, limited to 31 mm with pain, no joint sounds heard, and no pain on palpation of the muscles.  The diagnoses included decreased range of motion, clenching, and bruxism.  The examiner noted that no TMJ capsulitis was diagnosed on that day's examination.

On a VA examination in November 2008, the Veteran's relevant medical history included a notation that she suffered from TMJ disease, and that she grinds her teeth at night and recently obtained a night guard.  It was also noted that the Veteran recently had a medication added for treatment of TMJ which helped her fall asleep more easily now.  

In light of the JMPR, the Board finds that an additional VA examination is warranted in order to determine whether the Veteran has a current jaw disability, to include any disability manifested by limited opening of the jaw. 

2. Right Ankle Disability

As noted above, this issue was addressed in the JMPR filed in April 2017.  Therein, the parties noted that the Board erred by finding that "nothing in the record suggesting [the Veteran] has a chronic right ankle disability."  The parties noted that to the contrary, an August 2009 VA examination report contains findings that the Veteran had pain, stiffness, fatigability, weakness, and lack of endurance "over the base of the foot and ankle" and that there was evidence of painful motion, particularly with propulsion.  The parties noted that insofar as painful joint motion can suffice to establish a compensable disability, see 38 C.F.R. § 4.59, Burton v. Shinseki, 25 Vet.App. 1, 4-5 (2011), this evidence undercuts the Board's finding that the evidence does not support a finding of current disability.  

STRs note that in February 2006 the Veteran complained of ankle pain that was isolated and had resolved by the time she actually reported for treatment.  In August 2006, she complained of ankle pain with radiation to her Achilles that subsided over the past two days.  The diagnosis was a tendon overuse injury.  Post service treatment records (including her active problem list) are silent for complaints, treatment, or diagnoses related to ankle pain. 

On August 2009 VA foot examination, the Veteran reported having ankle pain.  Her right foot and ankle symptoms included pain, stiffness, fatigability, weakness, and lack of endurance, generalized over the base of the foot and ankle.  It was noted that she had flare-ups of foot joint disease.  It was also noted that objective examination of the right foot revealed painful motion and swelling, but showed no evidence of tenderness, instability, weakness, or abnormal weight bearing.  An x-ray dated in December 2008 was unremarkable, and a current x-ray was not performed because the Veteran was pregnant.  Physical examination found no significant right ankle pathology.  

In light of the JMPR, the Board finds that a current VA examination is warranted in order to determine whether the Veteran has a current right ankle disability. 

3. Left Piriformis Syndrome

In a statement dated in December 2012, the Veteran requested service connection for a left leg condition, secondary to the service-connected back disability.  The Veteran also reported that on the VA examination in November 2012, the examiner indicated that her leg was numb, and that in December 2012, her primary physician advised the numbness was due to her service-connected back condition.  

On a VA examination in March 2013, the diagnoses included piriformis syndrome, which was noted to have been diagnosed in 2013 after service.  The examiner opined that the Veteran's claimed left leg condition (piriformis syndrome) was less likely than not proximately due to or the result of the service-connected low back disability.  For rationale, the examiner noted that the Veteran reported her pain was quite focal over the left piriformis muscle, and she could not tolerate having that area massaged.  The examiner noted that when inflamed, the piriformis can irritate the sciatic nerve because the piriformis passes out of the pelvis through the greater sciatic foramen.  The examiner noted that the Veteran has a mild left knee lateral subluxation on x-ray which could be further aggravating her piriformis condition, and her service-connected flat feet could be altering her musculoskeletal alignment.  The examiner opined that the Veteran's disc herniation was causing only subtle effacement of the S1 nerves, so that was less likely to be causing her pain.  The examiner concluded that given this information, it was less likely than not that the Veteran's lumbar condition was causing her left leg pain.  

The Board notes that although the 2013 VA examiner addressed whether the Veteran's service-connected low back disability could have caused left piriformis syndrome, the examiner did not address whether a service-connected low back disability could have aggravated his left piriformis syndrome.  See Allen v. Brown, 7 Vet. App. 439, 449 (1995)  Once VA undertakes the effort to provide an examination when developing a service-connection claim, it must provide an adequate one.  See Barr v. Nicholson, 21 Vet. App. 303, 310-11 (2007).  Therefore, the Board concludes that another VA opinion is warranted.

4. Higher Ratings for Low Back Disability

The record reflects that after the most recent SSOC (supplemental statement of the case) was issued in May 2017, the agency of original jurisdiction (AOJ) scheduled the Veteran for an additional VA examination, in September 2017, to assess the current severity of her low back disability.  Thereafter, in September 2017, RO issued a rating decision denying a rating in excess of 40 percent for the service-connected low back disability, but did not issue an SSOC.  When the AOJ receives evidence relevant to a claim properly before it that is not duplicative of evidence already discussed in the SOC or an SSOC, it must prepare an SSOC reviewing that evidence.  38 C.F.R. § 19.31 (b)(1).  On remand, the AOJ must issue an SSOC which considers this evidence added to the file since the May 2017 SSOC.

5. Headaches

In a statement dated in November 2016, the Veteran contended that on the most recent VA examination of that month, the examiner did not record her contentions, including that she had migraine headaches 3 to 4 days a week, lasting 6 to 8 hours or longer.  She also contended that she often woke up with throbbing headaches and her head felt like it was being squeezed like a tight band.  She testified that she had to stop two medications because of the side effects, and after having an MRI of the brain no other medications were prescribed for her migraine headaches other than Tylenol.  In light of the foregoing, the Board finds that a remand is required for a current examination so that a detailed picture of the current state of her headaches may be obtained.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).  

6. TDIU Rating

With regard to the issue of entitlement to a TDIU rating, because a favorable decision with regard to the issues remanded above may have an impact on the TDIU rating claim, such issues are inextricably intertwined and the claim for a TDIU rating must also be remanded.  See Harris v. Derwinski, 1 Vet. App. 180 (1991).

Accordingly, the case is REMANDED for the following action:

1. Issue a SSOC on the issue of entitlement to a rating in excess of 40 percent for a low back disability effective from January 19, 2016.

2. Schedule the Veteran for an appropriate VA examination to address the nature and probable etiology of any current jaw disability.  The claims folder must be made available to the examiner for review in conjunction with the examination.  The examiner should first note for the record whether the Veteran has any diagnosis associated with his jaw, or any jaw-related symptoms, to include findings that the jaw had a "[m]aximum opening [of] 34mm, limited to 31 mm with pain.", and decreased range of motion.  The VA examiner then should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current jaw disability or disability manifested by symptoms in the jaw, may be related to the Veteran's service.  The examiner must provide complete rationale for all opinions and conclusions reached.  If the examiner is unable to provide the requested opinions without resorting to speculation, the examiner should so specify, along with an explanation as to why that is so.

3. Schedule the Veteran for an appropriate VA examination to address the nature and probable etiology of any current right ankle disability.  The claims folder must be made available to the examiner for review in conjunction with the examination.  The examiner should first note for the record whether the Veteran has any diagnosis associated with his right ankle or to his right ankle-related symptoms, to include any findings of pain, painful motion, stiffness, fatigability, weakness, or lack of endurance.  The VA examiner then should opine as to whether it is at least as likely as not (50 percent probability or greater) that any current right ankle disability or disability manifested by symptoms in the right ankle, may be related to the Veteran's service.  The examiner must provide complete rationale for all opinions and conclusions reached.  If the examiner is unable to provide the requested opinions without resorting to speculation, the examiner should so specify, along with an explanation as to why that is so.

4. Regarding the claim for service connection for left piriformis syndrome, forward the claim to the VA examiner who provided the March 2013 VA examination report, for a supplemental opinion.  The examiner should review the claims folder, and be requested to offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater degree of probability) that the Veteran's left piriformis syndrome was aggravated by a service-connected disability, to specifically include his low back disability.  The examiner must explain the rationale for all opinions given.  If the examiner is unable to provide any of the requested opinions without resorting to speculation, the examiner should so state and should provide an explanation as to the reason(s) therefor.  If the original VA examiner (from 2013) is not available, please forward this request to another qualified examiner in order to comply with the aforementioned request for an opinion. If deemed necessary by the examiner, a physical examination of the Veteran should be conducted.

5. Provide the Veteran with an appropriate examination to determine the current nature and severity of the service-connected headaches.  The entire claims file must be made available to the examiner.  Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis.  An explanation for all opinions expressed must be provided. 

6. After completing the above actions, and any other development as may be indicated, the claims must be readjudicated.  If any claim remains denied, a supplemental statement of the case (SSOC) must be provided to the Veteran and his representative.  After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or 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).


______________________________________________
Thomas H. O'Shay
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs