Citation Nr: 1752664 Decision Date: 11/16/17 Archive Date: 11/22/17 DOCKET NO. 08-15 863 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for right lumbar radiculopathy. 2. Entitlement to an initial rating in excess of 30 percent prior to July 29, 2009 for service-connected major depressive disorder. 3. Entitlement to an initial rating in excess of 10 percent for service-connected hypertension. 4. Entitlement to an initial compensable rating for service-connected onychomycosis, claimed as loss of nails. 5. Entitlement to an initial rating for service-connected cervical spine disorder in excess of 10 percent prior to July 29, 2009 and in excess of 20 percent from July 29, 2009 to the present. 6. Entitlement to an initial rating in excess of 10 percent for service-connected right cervical radiculopathy. 7. Entitlement to an initial rating in excess of 10 percent for service-connected left cervical radiculopathy. 8. Entitlement to an initial rating in excess of 10 percent for service-connected traumatic brain injury. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Lavan, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1992 to January 1993 and from December 2003 to April 2006. This matter is before the Board of Veterans' Appeals (Board) on appeal from several rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. This matter came before the Board in August 2012, at which time the Board remanded to obtain medical records and VA examinations. The Board is satisfied that there has been substantial compliance with the remand; thus, no further development is necessary. Stegall v. West, 11 Vet. App. 268 (1998). In July 2016, the RO granted service connection for the low back disorder and the left lumbar radiculopathy, as well as an earlier effective date for a total disability rating based on individual unemployability (TDIU). The RO also granted a higher rating of 100 percent for the service-connected depressive disorder and entitlement to special monthly compensation based on housebound criteria from July 29, 2009 to the present. Accordingly, these issues are no longer before the Board. As a result of these awards, the Veteran is in receipt of a total rating from the day following his discharge from service - April 4, 2006. It should be noted that despite the denials of higher ratings below, this will not change the fact the Veteran has been found totally disabled from April 4, 2006. The issues of entitlement to service connection for GERD (see August 2007 notice of disagreement, "acid reflux"), erectile dysfunction (see VA TBI examination November 2009), and bilateral hearing loss (see March 2011 646 from representative) were raised by the record and referred to the AOJ by the Board in August 2012. These issues still have not been adjudicated. Additionally, the issue of entitlement to special monthly compensation based on housebound criteria prior to July 29, 2009 has been raised by this Board decision. The Board does not have jurisdiction over these issues, and they are REFERRED to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). The issue of service connection for right lumbar radiculopathy is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. Prior to July 29, 2009, the Veteran's depressive disorder was manifested by marked interference with establishing relationships and engaging in recreational activity, moderate interference with performing activities of daily living, disorientation to time, memory impairment, emotional impulse control, sleep impairment, and hospitalizations, but not by gross impairment in thought or communication, forgetting names of relatives or self, persistent violent tendencies toward self or others, or grossly inappropriate behavior. 2. For the entire period on appeal, the Veteran's hypertension has been manifested by diastolic pressure that is 100 or less and systolic pressure that is 160 or less, and requires continuous medication for control. 3. For the entire period on appeal, the Veteran's onychomycosis covered, at worst, less than 5 percent of the entire body area or exposed area and was treated by topical corticosteroid treatment and antifungal oral medications. 4. Prior to July 29, 2009, the cervical spine disorder was manifested by forward flexion of the cervical spine greater than 30 degrees without ankylosis or incapacitating episodes. 5. After July 29, 2009, the cervical spine disorder was manifested by forward flexion of the cervical spine greater than 15 degrees without ankylosis or incapacitating episodes. 6. For the entire period on appeal, the Veteran's bilateral cervical radiculopathy disorder was mild in its severity, at worst. 7. Prior to October 23, 2008, the Veteran's TBI disorder was manifested by symptoms of headaches, dizziness, and imbalance, but not diagnosed neurological disorders or multi-infarct dementia. 8. After October 23, 2008, the TBI disorder was manifested by chronic tension headaches that ranged from mild to severe, intermittent complaints of dizziness, and related imbalance spells. CONCLUSIONS OF LAW 1. The criteria for a 70 percent rating, but no higher, for service-connected depressive disorder have been met for the period prior to July 29, 2009. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for a rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7101 (2017). 3. The criteria for a rating in excess of 10 percent for service-connected onychomycosis have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7813-7806 (2017). 4. The criteria for a rating in excess of 10 percent for the service-connected cervical spine disorder prior to July 29, 2009, and in excess of 20 percent after July 29, 2009, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 5. The criteria for a rating in excess of 10 percent for service-connected right cervical radiculopathy disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2017). 6. The criteria for a rating in excess of 10 percent for service-connected left cervical radiculopathy disorder have not been met. 38 U.S.C.A. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8515 (2017). 7. The criteria for a rating in excess of 10 percent for service-connected traumatic brain injury residuals have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. In every decision, the Board must provide a statement of the reasons or bases for its determination, adequate to enable an appellant to understand the precise basis for the Board's decision, as well as to facilitate review by the Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995). Although the entire record must be reviewed by the Board, the Court has repeatedly found that the Board is not required to discuss, in detail, every piece of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (rejecting the notion that the Veterans Claims Assistance Act mandates that the Board discuss all evidence). Rather, the law requires only that the Board address its reasons for rejecting evidence favorable to the appellant. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The appellant must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, infra. The Board finds that VA's duties to notify and assist have been met and all due process considerations have been satisfied. Except as discussed herein, the Veteran has not raised issues with the duties to notify or 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 (Fed. Cir. 2016) (applying Scott to the duty to assist). Moreover, while new and material evidence was received after the Supplemental Statement of the Case, a waiver was obtained in September 2017. The pertinent regulations were provided to the Veteran in the Statement/Supplemental Statement of the Case and will not be repeated here Initial Rating for Depressive Disorder The Veteran contends that he is entitled to a rating in excess of 30 percent for his depressive disorder prior to July 29, 2009. In light of the medical and lay evidence, the Board finds that a 70 percent evaluation is warranted. August 2006 medical records show that he was hospitalized in July 2006 for attempted suicide. He was also separated from his wife and living with his parents. His thought processes, judgment, orientation, and memory were deemed intact, but he had poor motivation, relationships, and interest in activities. He was also described as irritable and explosive. A September 2006 private mental health evaluation revealed good hygiene, normal thought content, and no panic attacks, as well as anxiousness, hypervigilance, an abnormal affect, poor judgment and insight, disorientation to time, poor immediate and remote memory, poor attention, and a poor ability to form relationships and participate in activities. He was given a poor prognosis. In October 2006, however, he was assigned a GAF of 60 based on normal thought content and processes, lack of suicidal and homicidal intent, ability to maintain hygiene and activities of daily living, orientation in all spheres, normal speech, and no panic attacks. He did report sleep impairment, irritable and verbally abusive behavior, and mild memory loss. In October 2007, an initial case evaluation report for the Veteran's SSA disability application showed slow thought flow, psychomotor issues, a hostile and depressed mood, and diminished attention and concentration. The SSA mental health evaluation showed no disorientation, memory impairment, hallucinations/delusions, or thinking disturbances, but documented mood disturbances and impulse control issues. The evaluator concluded that the Veteran's depressive disorder caused moderate restriction of his activities of daily living, marked difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence, or pace. He was subsequently determined disabled based on the primary diagnosis of an affective disorder. From November 2007 to March 2008, records show that his symptoms improved and he was assigned a GAF score of 55 to 60. In October 2008, however, he was hospitalized again due to his psychiatric disorder. He was afforded another VA examination in September 2009, which reported disorientation to time, memory impairment, problems with shopping and engaging in recreational activities, and an ability to maintain personal hygiene. In sum, the Veteran's depressive disorder caused a wide range of varying symptoms. Based on his hospitalizations, intermittent disorientation to time, impaired memory, reports of moderate to marked difficulties maintaining relationships and engaging in activities of daily living, and impaired emotional control, the Board finds that a 70 percent rating is warranted prior to July 29, 2009. A rating of 100 percent is not warranted because the evidence does not show that he experienced gross impairment in thought or communication, persistent delusions or hallucinations, persistent homicidal or suicidal danger, disorientation to place, or memory loss so severe he forgot his name or relatives' names. Initial Rating for Hypertension The Veteran contends that he is entitled to a rating in excess of 10 percent for his service-connected hypertension. The Board finds, however, that the preponderance of the evidence is against assigning a 20 percent or higher rating for the entire period on appeal. In making this determination, the Board considered the Veteran's SSA and VA medical records and VA examinations. They show that he requires continuous medication to control his hypertension and his blood pressure is predominantly under 145/90. From 2009 to 2014, his highest blood pressure level was 160/98, which does not justify a 20 percent rating. The Veteran reported that he measures his blood pressure at home and it remains under control, ranging from 120-140/75-90. During the examination, his blood pressure readings were 135/85, 130/83, and 132/90. Accordingly, the evidence justifies a 10 percent rating for hypertension and no higher for the entire period on appeal, and the claim is denied. Initial Rating for Onychomycosis The Veteran contends that he is entitled to a compensable rating for his service-connected onychomycosis. The Board finds, however, that the preponderance of the evidence is against assigning a 10 percent or higher rating under Diagnostic Codes 7813-7806 for the entire period on appeal. An October 2006 VA general medical examination revealed onychomycosis in all of the Veteran's toes, and a missing nail for one right toe. The Veteran denied using any treatment, including topical therapy or corticosteroids. In August 2007, a VA skin examination showed tinea pedis on less than 1 percent of the entire affected area, a missing right fifth toenail, and subungual hyperkeratosis on the third and fourth toenails of both feet. He was diagnosed with tinea unguium and tinea pedis. The Veteran denied using any treatment, including topical therapy or corticosteroids. He underwent another VA examination in September 2009, which showed that his right first toenail had deteriorated due to the fungal infection. His remaining toenails were free of disease and the skin of his feet did not have any rashes or scales. Except for a sole podiatry visit for dystrophic nails and bunions, subsequent VA treatment records did not demonstrate treatment for fungal infections, nail issues, or tinea pedis. The Veteran was afforded a VA skin examination in March 2016. He reported continued nail fungus with recurrent loss of nails which form darkened scales when they grow back. He reported treating his issue with Lamisil tabs, with temporary improvement, and creams and lacquer, without results. In the examination report, the examiner indicated that the Veteran used topical corticosteroids for at least 6 weeks or more, but not on a constant basis, for his onychomycosis. A physical examination revealed the approximate affected area was less than 5 percent of the total body area and none of the exposed area. The examiner also documented that the Veteran's toenails were discolored with fine lines, and the bilateral first and fifth toenails were hyperkeratotic with scales and a yellowish color. He opined that these conditions do not have any functional impact. The Board finds that the preponderance of the evidence shows the Veteran's skin disorder, at worst, covers less than 5 percent of the entire body area or exposed area. The evidence further shows that the Veteran only treats his disorder with topical corticosteroid treatment and antifungal oral medications. See U.S. Nat'l Library of Med., Terbinafine, https://medlineplus.gov/druginfo/meds/a699061.html (last visited Oct. 31, 2017) (indicating Terbinafine, the generic form of Lamisil, is in a class of medications called antifungals). Thus, the claim for a compensable rating is denied. Initial Rating for the Cervical Spine Disorder and Radiculopathy The Veteran contends he is entitled to a higher rating because he experiences pain on a daily basis and is unable to perform household chores during flare-ups. The Veteran underwent VA cervical spine examinations in October 2006, January 2008, and September 2009 that showed, at worst, flexion to 40 degrees with pain and no incapacitating episodes. Similarly, an August 2007 SSA evaluation showed full flexion and extension for the cervical spine. In September 2009, there was evidence of guarding, pain, tenderness, and reduced muscle strength, but no atrophy or weakness. The March 2016 VA examination showed forward flexion to 30 degrees, with pain on motion, and no additional loss of motion after repetitive use testing. There was no evidence of ankylosis or cervical radiculopathy, but there was evidence of reduced muscle strength and hypoactive reflexes. The Board finds that the evidence does not justify a rating in excess of 10 percent for the cervical spine disorder prior to July 29, 2009 because it does not show forward flexion of the spine to 30 degrees, ankylosis, or incapacitating episodes. The Board further finds that a rating in excess of 20 percent for the cervical spine disorder is not warranted from July 29, 2009 onward because it does not show forward flexion of the spine to 15 degrees or less, ankylosis, or incapacitating episodes. The Board considered whether a higher rating was based on the Veteran's statements and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's rating is already based on the extent to which pain, weakness, incoordination, and fatigability cause limitation of motion, and contemplate the functional loss caused by flare-ups. Indeed, the Veteran detailed only being unable to perform household chores during flare-ups. Thus, a higher rating for the cervical spine disorder is denied. Finally, the Board finds that the evidence does not justify higher ratings for the cervical radiculopathy. While the October 2006 examination documented impaired sensation and a diagnosis of bilateral radiculopathy, the September 2009 and March 2016 examinations showed no evidence of cervical radiculopathy. Instead, the Veteran's upper extremity symptoms have been related to entrapment of the median nerves. Thus, a rating in excess of 10 percent for cervical radiculopathy is denied. At best, any symptoms attributable to cervical radiculopathy during the appeal period were mild in nature (e.g., sensory disturbances only), especially considering symptoms of radiculopathy were absent on two VA examinations more than five years apart. Initial Rating for TBI Residuals The Veteran contends he is entitled to a rating in excess of 10 percent for his service-connected traumatic brain injury (TBI) residuals. Throughout the period on appeal, he has complained of headaches, dizziness, ear fullness, and balance issues related to his TBI. During the pendency of the appeal, the criteria for evaluating the residuals of TBI were revised on October 23, 2008. See 73 Fed. Reg. 54693 (2008). For the time period prior to October 23, 2008, the previous regulations apply. For the time period on and after October 23, 2008, the previous or the revised regulations may apply, depending on the version that is more beneficial to the Veteran. See, e.g., Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Under the previous regulation prior to October 23, 2008, 38 C.F.R. § 4.124a, Diagnostic Code 8045 (2007) provided for the evaluation of brain disease due to trauma. This diagnostic code specifies that purely neurological disabilities are rated under the applicable diagnostic code. Purely subjective complaints, such as headache, dizziness, or insomnia, which are recognized as symptomatic of brain trauma, are rated at 10 percent and no more under Diagnostic Code 9304 (dementia due to head trauma) and may not be combined with any other rating for a disability due to brain trauma. A rating in excess of 10 percent for brain disease due to trauma under Diagnostic Code 9304 was not to be assigned in the absence of a diagnosis of multi-infarct dementia associated with brain trauma. Based on the medical and lay evidence, the Veteran is not entitled to a higher rating under the old criteria during any period on appeal. The Veteran's symptoms of headaches, dizziness, and imbalance were evaluated as purely subjective under the old criteria, and there is no evidence of diagnosed neurological disorders or multi-infarct dementia necessary to warrant a rating in excess of 10 percent. Additionally, symptoms associated with the service-connected depressive disorder, including memory, judgment, and orientation issues, are already contemplated by the separate psychiatric disability rating. The Veteran could not be assigned an additional TBI rating for these symptoms, as that would be compensating him twice for the same symptoms. Thus, the Board finds a higher rating is not warranted under the old criteria, and will continue its analysis under the amended criteria. Under the amended criteria, there are three main areas of dysfunction that may result from a TBI and have profound effects on functioning: emotional/behavioral, cognitive (which is common in varying degrees after a traumatic brain injury), and physical. Each of these areas of dysfunction may require evaluation and any residuals that have a distinct diagnosis and may be evaluated under another diagnostic code should be evaluated under that code. Diagnostic Code 8045 mandates that emotional and behavioral dysfunction should be rated under § 4.130 when there is a mental health disorder diagnosis. The Veteran is already service-connected for a depressive disorder and the symptoms related to his emotional and behavioral dysfunction have been utilized to increase the service-connected depressive disorder rating. These same symptoms cannot be considered, then, when rating his TBI. Regarding cognitive dysfunction, the record demonstrates issues with memory, judgment, social interaction, and, at times, orientation to time. The Board finds, however, that these symptoms have also been utilized to increase the service-connected depressive disorder rating. The Veteran thus cannot receive a higher rating for his TBI disability based on these symptoms. The medical records overwhelmingly show evidence of headaches, dizziness, and imbalance issues related to his TBI. Subjective symptoms associated with a TBI, whether the only residual or associated with cognitive impairment, are to be evaluated under the table included in Diagnostic Code 8045. Any residual with a distinct diagnosis that may be evaluated under another code, such as migraine headaches or Meniere's disease, should be rated separately rather than under Diagnostic Code 8045. Here, VA medical records show treatment for tension headaches and dizziness, but no distinct diagnoses of a migraine disorder or peripheral vestibular disorder. Accordingly, these symptoms will be analyzed as subjective symptoms under the table. Diagnostic Code 8045 also instructs VA to rate physical dysfunction, such as balance problems, under an appropriate diagnostic code. Here, the Veteran's imbalance issues have been related to dizziness, were characterized as a subjective symptom, and have not been separately diagnosed. Moreover, the only applicable diagnostic code is Diagnostic Code 6204, which governs peripheral vestibular disorders. The Veteran has no objective manifestations of this disorder or a diagnosis, and his symptoms of dizziness are being analyzed as a subjective symptom. Indeed, the Veteran underwent testing for demyelination, which was negative, in 2007. Accordingly, the Board will evaluate his imbalance issues as a subjective symptom under the table. In consideration of the medical and lay evidence, the Board finds that the Veteran's symptoms do not warrant a rating in excess of 10 percent. The Board found the VA examinations conducted throughout the period on appeal particularly probative. In the November 2009 examination, the Veteran reported frequent headaches, some of which were prostrating, and a sensation of imbalance daily. The examiner found no gait abnormalities, imbalance or tremors, or muscle atrophy or loss, and determined that he had three or more subjective symptoms that only mildly interfere with work, instrumental activities of daily living, or work, family, or other close relationships. In the March 2016 VA examination, the Veteran reported mild or occasional headaches, dizziness, and imbalance, and no other physical findings or conditions were noted. The contemporaneous VA medical records support these findings. They show intermittent complaints of tension headaches and dizziness, but do not indicate these episodes require rest periods during most days. In sum, the evidence does not support the finding that the Veteran has three or more subjective symptoms that moderately interfere with instrumental activities of daily living or work, family, or other close relationships. In consideration of the preponderance of the evidence, the claim for a higher initial rating for the service-connected TBI is denied. ORDER Entitlement to an initial rating of 70 percent, but no higher, prior to July 29, 2009 for service-connected major depressive disorder is granted, subject to the laws and regulations governing payment of monetary benefits. Entitlement to an initial rating in excess of 10 percent for service-connected hypertension is denied. Entitlement to an initial compensable rating for service-connected onychomycosis, claimed as loss of nails, is denied. Entitlement to an initial rating for the service-connected cervical spine disorder in excess of 10 percent prior to July 29, 2009 and in excess of 20 percent from July 29, 2009 to the present, is denied. Entitlement to an initial rating in excess of 10 percent for service-connected right cervical radiculopathy is denied. Entitlement to an initial rating in excess of 10 percent for service-connected left cervical radiculopathy is denied. (CONTINUED ON NEXT PAGE) Entitlement to an initial rating in excess of 10 percent for service-connected traumatic brain injury is denied. REMAND The issue of service connection for right lumbar radiculopathy must be remanded for an addendum medical opinion. The Veteran was afforded a VA examination on March 2016 to assess whether he had lumbar radiculopathy. While the examination report indicated severe right lower extremity intermittent pain, paresthesias, and numbness, the examiner stated there was no clinical evidence of right lower extremity radiculopathy. The examination also revealed a positive straight leg raising test, which is consistent with a January 2008 VA medical record that showed predominant radicular symptoms in the right lower extremity consistent with L5 radiculopathy. The Board finds that an addendum opinion explaining how there is no clinical evidence of right lower extremity radiculopathy despite the January 2008 VA medical record and the positive straight leg raising test result is necessary. Accordingly, the case is REMANDED for the following action: 1. Forward the Veteran's claims file to the medical examiner who issued the March 2016 radiculopathy opinion or another appropriate examiner if he is unavailable. After review of the claims file, the examiner should opine whether the Veteran has a current diagnosis of right lower extremity radiculopathy. If the examiner determines there is no current right lower extremity radiculopathy, the examiner should provide a rationale that addresses the positive straight leg raising test result from March 2016 and the January 2008 VA medical record that showed predominant radicular symptoms in the right lower extremity. 2. After the above development has been completed, the AOJ should readjudicate the claim. If the benefit sought remains denied, provide the Veteran and his representative with a Supplemental Statement of the Case, and return the case to the Board. 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). ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs