Citation Nr: 1753486	
Decision Date: 11/21/17    Archive Date: 12/01/17

DOCKET NO.  13-16 711	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin


THE ISSUES

1.  Entitlement to service connection for a thoracic spine disorder.

2.  Entitlement to an increased compensable disability rating for a fracture of the neck of the left fifth metacarpal (the left little finger).  

3.  Entitlement to an initial disability rating greater than 30 percent for major depressive disorder with anxiety, prior to November 20, 2014.

4.  Entitlement to an initial disability rating greater than 70 percent for major depressive disorder with anxiety, on and after November 20, 2014.


REPRESENTATION

Veteran represented by:	Disabled American Veterans



WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

P.S. Rubin, Counsel


INTRODUCTION

The Veteran had active duty service in the U.S. Army from March 1986 to September 1987 and from February 1990 to November 1990.  

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin.  

In March 2016, the Veteran presented testimony at a Board videoconference hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is associated with the claims file.  

In December 2016, the Board remanded the issues currently on appeal for further development.  The case has since been returned from the RO to the Board for appellate review.  

In the same December 2016 Board decision, the Board also denied service connection for a gastrointestinal disorder.  The Veteran did not appeal this denial to the U.S. Court of Appeals for Veterans Claims (Court).  In short, this issue is no longer on appeal before the Board.

Finally, in the same December 2016 Board decision, the Board remanded the issue of entitlement to a total disability rating based on individual unemployability (TDIU) to the RO for further development.  After completion of this development, in an April 2017 rating decision, the RO granted the Veteran a TDIU, effective from November 20, 2014.  A notification letter enclosed with the April 2017 rating decision apprised the Veteran at his address of record of his right to appeal the TDIU issue by way of a VA Form 4107 (standard notice of appellate rights).  However, a review of the record shows that the Veteran has not submitted a Notice of Disagreement (NOD) or Substantive Appeal (e.g., VA Form 9 or equivalent statement) for this particular issue.  See 38 U.S.C. § 7105(a) (2012); 38 C.F.R. §§ 20.200, 20.201, 20.202, 20.300, 20.302 (2017).  That is, the Veteran has not appealed the effective date assigned for his award of a TDIU.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (the veteran must separately appeal downstream issues).  In fact, in an August 2017 Appellant's Brief, the Veteran's representative did not list the TDIU issue as being on appeal.  Thus, the issue of an effective date earlier than November 20, 2014, for the award of a TDIU, is not on appeal before the Board.  (The Veteran is once again advised that he has until April 2018 to appeal the effective date assigned for the TDIU award, if he so desires).  

The issue of service connection for a thoracic spine disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). 


FINDINGS OF FACT

1. The Veteran's service-connected non-dominant left fifth metacarpal (little finger) disability is productive of pain, some limitation of motion with less movement than usual, reduced grip, deformity, tenderness, and other functional loss factors in the left hand / wrist, but is not productive of ankylosis, amputation, prosthesis, or loss of use of any of his left hand digits. 
  
2.  From July 21, 2010 to November 20, 2014, the Veteran's service-connected major depression with anxiety is manifested by psychiatric symptoms causing occupational and social impairment with reduced reliability and productivity, but not occupational and social impairment, with deficiencies in most areas.

3.  On and after November 20, 2014, the Veteran's service-connected major depression with anxiety is manifested by psychiatric symptoms causing occupational and social impairment, with deficiencies in most areas, but not total occupational and social impairment.


CONCLUSIONS OF LAW

1.  The criteria are met for a higher 10 percent rating, but no greater, for the Veteran's service-connected left 5th metacarpal disability.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.20, 4.21, 4.27, 4.40, 4.45, 4.59, 4.69, 4.71a, Diagnostic Codes 5299-5215, 5227, 5230 (2017).

2.  From July 21, 2010 to November 20, 2014, the criteria are met for a higher initial 50 percent rating, but no greater, for the Veteran's service-connected major depression with anxiety.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2017).  

3.  On and after November 20, 2014, the criteria are not met for an initial rating greater than 70 percent for the Veteran's service-connected major depression with anxiety.  38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.126, 4.130, Diagnostic Code 9434 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017).  

For the increased rating issues on appeal, neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duties to notify and assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances . . . we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran . . .").

II.  Increased Rating 

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017).  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.

If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor.  38 C.F.R. § 4.3. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).  

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41 (2017).  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending.  Powell v. West, 13 Vet. App. 31, 34 (1999).  

The Board must also assess the competence and credibility of lay statements and testimony.  Barr v. Nicholson, 21 Vet. App. 303, 308 (2007).  In increased rating claims, a Veteran's lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms.  See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev'd on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009).  The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected left 5th finger and psychiatric disabilities.  See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995).  

	A.  Left 5th Finger

The Veteran's residuals of a fracture of the neck of the left fifth metacarpal (the left little finger) are currently assigned a noncompensable (0 percent) rating by analogy under Diagnostic Code 5299-5227 (ankylosis of the ring or little finger).  38 C.F.R. § 4.71a (2017).  

Alternatively, this 0 percent rating had been assigned by analogy under Diagnostic Code 5299-5230 (limitation of motion of the ring or little finger).  Id.  

In any event, the 0 percent rating for the Veteran's left fifth metacarpal disability, under either diagnostic code, has been in effect since September 9, 1987.  

The Veteran filed an increased rating claim for his service-connected left fifth metacarpal disability in July 2010.  The Veteran's entire history is reviewed when assigning a disability evaluation.  38 C.F.R. § 4.1.  However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings.  See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The Board must consider whether there have been times when his left fifth metacarpal disability has been more severe than at others, and rate it accordingly.  "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim."  Hart, 21 Vet. App. at 509.  

When an unlisted condition is encountered, it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous.  38 C.F.R. § 4.20.  According to the policy in the schedule, when a disability is not specifically listed, the Diagnostic Code will be "built up," meaning that the first 2 digits will be selected from that part of the schedule most closely identifying the part of the body involved, and the last 2 digits will be "99."  38 C.F.R. § 4.27.  For example, Diagnostic Code 5299 is used to identify unlisted hand or finger disabilities, such as the Veteran's disability in the present case. 

Under Diagnostic Code 5227, ankylosis of the ring or little finger, a 0 percent disability rating is warranted for favorable or unfavorable ankylosis.  38 C.F.R. § 4.71a.  Under Diagnostic Code 5230, limitation of motion of the ring or little finger, a 0 percent disability rating is warranted for any limitation of motion.  In summary, these diagnostic codes provide a maximum 0 percent evaluation for disability of the little (5th) finger.  Id.   

For the index, long, ring, and little fingers (digits II, III, IV, and V), zero degrees of flexion represents the fingers fully extended, making a straight line with the rest of the hand.  The position of function of the hand is with the wrist dorsiflexed 20 to 30 degrees, the metacarpophalangeal and proximal interphalangeal joints flexed to 30 degrees, and the thumb (digit I) abducted and rotated so that the thumb pad faces the finger pads.  Only joints in these positions are considered to be in favorable position.  For digits II through V, the metacarpophalangeal (MCP) joint has a range of zero to 90 degrees of flexion, the proximal interphalangeal (PIP) joint has a range of zero to 100 degrees of flexion, and the distal (terminal) interphalangeal (DIP) joint has a range of zero to 70 or 80 degrees of flexion.  38 C.F.R. § 4.71a, Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand, Note (1).  

When two or more digits of the same hand are affected by any combination of amputation, ankylosis, or limitation of motion that is not otherwise specified in the Rating Schedule, the evaluation level assigned will be that which best represents the overall disability (i.e., amputation, unfavorable or favorable ankylosis, or limitation of motion), assigning the higher level of evaluation when the level of disability is equally balanced between one level and the next higher level.  38 C.F.R. § 4.71a, Note (2).

Also, if there is limitation of motion of two or more digits, evaluate each digit separately and combine the evaluation.  38 C.F.R. § 4.71a, Note (5).  

Finally, a Note to Diagnostic Code 5227 (ankylosis of the little finger) states that the rater should also consider whether evaluation as amputation is warranted and whether an additional evaluation is warranted for resulting limitation of motion of other digits or interference with overall function of the hand.  38 C.F.R. § 4.71a.  

When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45.  DeLuca v. Brown, 8 Vet. App. 202, 206 (1995).  Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse.  The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant.  38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997).  

Although pain may cause functional loss, pain itself does not constitute functional loss.  Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss.  Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40).  

With any form of arthritis, painful motion is an important factor of disability.  The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability.  Joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint.  38 C.F.R. § 4.59.  Moreover, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis.  When § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, VA should address its applicability.  Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). 

At the outset, VA examiners have noted that the Veteran is right-hand dominant.  See December 1991 VA orthopedic examination.  Therefore, his service-connected left fifth metacarpal disability is clearly on the minor, i.e., non-dominant side.  See 38 C.F.R. § 4.69.

Historically, service treatment records (STRs) recorded an injury of the left hand in August 1987.  An STR X-ray of the left hand in August 1987 revealed oblique fracture of the distal fifth metacarpal.  Post-service, the RO service-connected the Veteran for residuals of the in-service left fifth metacarpal fracture.  

Upon review, a rating above 0 percent for the service-connected left fifth metacarpal disability is not warranted, but only when considering the criteria for Evaluation of Ankylosis or Limitation of Motion of Single or Multiple Digits of the Hand.  38 C.F.R. § 4.7.  

In particular, the Board has reviewed VA hand and finger examinations dated in November 2010, February 2015, and March 2017.  The Board has also considered VA treatment records dated from 2010 to 2017 and Social Security Administration (SSA) disability records dated in 2010.  Finally, the Board has considered the Veteran's lay statements and March 2016 hearing testimony.  However, no diagnostic codes for compensable finger disabilities are applicable because the facts of the case do not support their application.  The above medical and lay evidence of record establishes neither compensable limitation of motion nor ankylosis nor amputation nor loss of use for any of the five digits of the Veteran's left hand, even with consideration of pain and other factors of functional loss.  See 38 C.F.R. § 4.71a, Diagnostic Codes 5216 to 5219 (unfavorable ankylosis of multiple digits), Diagnostic Codes 5220 to 5223 (favorable ankylosis of two or more digits), Diagnostic Codes 5224 to 5227 (ankylosis of individual digits), Diagnostic Code 5228 (limitation of motion of the thumb), Diagnostic Code 5230 (limitation of motion of the ring or little finger), and Diagnostic Codes 5051 to 5156 (amputation, prosthesis, and loss of use of the hands and fingers).  Therefore, these particular finger and hand diagnostic codes that could provide for higher ratings cannot be applied.  See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence).  

The Board notes that ankylosis is the immobility and consolidation of a joint due to disease, injury or surgical procedure.  See, e.g., Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) and Lewis v. Derwinski, 3 Vet. App. 259 (1992) [citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)].  In this case, the Veteran has exhibited some range of motion for all of his left hand fingers at his VA examinations.  Also, the VA examiners observed no ankylosis in any of his fingers of the left hand.  In addition, even with consideration of the factors of functional loss, the Board finds that the Veteran's pain and reduced grip and any limitation of motion of his left hand digits do not more nearly approximate ankylosis.  38 C.F.R. §§ 4.40, 4.45; 4.59; Mitchell, 25 Vet. App. at 38; DeLuca, 8 Vet. App. at 206. 

As noted above, 0 percent is the maximum rating available under Diagnostic Codes 5227 and 5230.  Moreover, the Board is cognizant of the Court's recent holding that section 4.59 does not apply where the applicable diagnostic codes (such as 5227 and 5230 in this case) fail to provide for a compensable rating.  Sowers v. McDonald, 27 Vet. App. 472, 480-81 (2016).  Therefore, section 4.59 cannot provide a minimum 10 percent rating for the Veteran under these particular diagnostic codes pertaining to the fingers in this case.  As such, the Veteran may only receive a higher rating under a different diagnostic code or on an extraschedular basis.  

Turning to this point, the Board emphasizes it is permissible to switch diagnostic codes to more accurately reflect a claimant's current symptoms.  See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011) (holding that service connection for a disability is not severed when the situs of the disability, or the diagnostic code associated with it, is corrected to more accurately determine the benefit to which a veteran may be entitled for a service-connected disability).  

In fact, the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  Butts v. Brown, 5 Vet. App. 532, 538 (1993).  One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology.  Any change in a diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).  In this case, the Board has considered whether another rating code is "more appropriate" than the ones (Diagnostic Codes 5227 and 5230) used by the RO.  See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).

Upon review of the evidence, a higher 10 percent rating, but no greater, is warranted for the service-connected left fifth metacarpal disability by analogy under Diagnostic Code 5299-5215 (limitation of motion of the wrist).  38 C.F.R. § 4.7.  

Normal range of motion for the wrist is 70 degrees of dorsiflexion (extension) and 80 degrees of palmar flexion.  38 C.F.R. § 4.71, Plate I.  Normal ulnar deviation is 45 degrees, while normal radiation deviation is 20 degrees.  Id.      

Diagnostic Code 5215 provides for a maximum rating of 10 percent for limitation of motion of the wrist for either the dominant or non-dominant hand when dorsiflexion is less than 15 degrees or when palmer flexion is limited in line with the forearm.  38 C.F.R. § 4.71a (2017). 

As pertinent to the assignment of a 10 percent rating for the left fifth metacarpal disability, VA regulation provides that joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint, even if arthritis is not present.  38 C.F.R. § 4.59 (emphasis added); Burton, 25 Vet. App. at 3-5.  A veteran experiencing an actually painful joint is entitled to at least the minimum compensable rating for the joint under the appropriate diagnostic code to the joint involved.  In other words, section 4.59 does not require "objective" evidence of painful motion.  

In this case, there is credible medical and lay evidence of left hand pain, limitation of motion, and other functional loss factors of the left hand, caused by the Veteran's service-connected left fifth metacarpal disability.  In this regard, SSA disability records dated in 2010 revealed the Veteran's credible complaints of pain in his left hand.  In a September 2010 VA urgent care clinic note, the Veteran reported left hand pain, and that he was unable to extend the fingers of his left hand.  This record showed tenderness with palpation of the left fourth and fifth metacarpal, with an otherwise normal exam.  The diagnosis was left hand pain.  X-rays dated in September 2010 showed a healed fracture deformity of the left 5th metacarpal.  (Deformity and pain on movement are specifically listed as considerations for functional loss of joints under 38 C.F.R. § 4.45(f)).  The Veteran was given Naproxen 500 mg twice daily for the pain.  An October 2010 VA mental health outpatient E&M note documented pain in the left hand of 2/10.  The Veteran takes Tramadol for the pain.  A November 2010 VA hand examination noted the Veteran's report of constant pain over the dorsum of the left hand, pointing to the fourth and fifth metacarpal, rated as a 3 out of 10.  If he fails to take the Tramadol, the pain is reported to be 9/10.  He also reported occasional swelling and warmth in the left hand that is localized without any radiation of pain or paresthesias.  The Veteran added that any repetitive use with his left hand such as grasping, holding any objects no matter their weight, or repetitively turning things like doorknobs or opening jars will trigger 30 minute flare-ups.  Physical examination of the left hand revealed a small bony prominence of the proximal left fifth metacarpal that is tender with deep palpation.  X-rays showed an old healed fracture of the left fifth metacarpal unchanged since 2005.

In addition, an April 2012 VA primary care nurse practitioner outpatient note again mentioned the Veteran takes Tramadol for joint pain in the left hand.  A February 2015 VA hand / fingers examiner observed normal range of motion for the left hand and fingers with no ankylosis.  But there was residual subjective complaint of pain and a hump at the site of the healed fracture with deformity noted.  

At the March 2016 videoconference hearing, the Veteran credibly testified he does not have full range of motion of his left hand.  He again mentioned taking Tramadol to control pain in the left hand.  In this regard, the Court has held that credible lay evidence of functional loss due to pain, including during flare-up periods, observed outside of the VA examination context could constitute objective evidence in support of an evaluation.  Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015).  

At the March 2017 VA hand / fingers examination, the Veteran reported his left hand is painful and stiff and his left little finger is slanted towards the right (towards the ring finger).  His grip was described by the Veteran as poor.  He added there were flare-ups of pressure and pain in the left hand, with functional loss of difficulty cooking and cleaning.  Upon examination, there was some limitation of MCP, PIP, and DIP flexion of the left little finger.  There was evidence of pain with use of the left hand.  There was also mild tenderness of the left 5th metacarpal with deformity contributing to disability - the left hand grip had reduced strength.  But there was no atrophy and no ankylosis.  Functionally at work, this disability impacts his grip of the left hand.  It affects both sedentary employment and physical labor.  Limited and painful motion of the left little finger impacts repetitive use of the left hand for keyboard use, gripping, and lifting.  The March 2017 VA examiner opined that the Veteran's statements describing functional loss with repetitive use over time were consistent with the examination and credible.  

In light of the above evidence, the minimum compensable rating under the limitation of motion code pertaining to the affected left hand / wrist joint is 10 percent.  See 38 C.F.R. § 4.71a, Diagnostic Code 5215.  This is also the maximum rating available under this diagnostic code.  Therefore, a 10 percent rating is warranted for the Veteran's left hand throughout the entire appeal period under Diagnostic Code 5215.  38 C.F.R. § 4.59, Burton, 25 Vet. App. at 3-5, Petitti, 27 Vet. App. at 424-30.  See also 38 C.F.R. § 4.45(f).  

However, throughout the entire appeal period, the Veteran is not entitled to an increased evaluation in excess of 10 percent for the left fifth metacarpal disability See 38 C.F.R. § 4.7.  On this issue, he is already at the maximum rating for limitation of motion of the left hand / wrist under Diagnostic Code 5215.  There is no clinical evidence and no lay allegation of ankylosis of the left hand / wrist under Diagnostic Code 5214 that could potentially have provided higher 20, 30, or 40 percent ratings.  Consequently, the Board concludes that Diagnostic Code 5215 for limitation of motion of the left hand / wrist most appropriately reflects the Veteran's service-connected left fifth metacarpal disability, as opposed to Diagnostic Codes 5227 or 5230.  See again Butts, 5 Vet. App. at 538 (choice of diagnostic code should be upheld if supported by explanation and evidence).

Accordingly, the Board finds that the evidence supports an increased disability rating of 10 percent, but no higher, for the Veteran's service-connected left fifth metacarpal disability.  38 C.F.R. § 4.3.  

Neither the Veteran nor his 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) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."  


	B.  IR Depression at 30 Percent

Mental health disorders are evaluated under the general rating formula for mental disorders, a specific rating formula presented under 38 C.F.R. § 4.130.  In addition, the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual for Mental Disorders (DSM-5) provides guidance for the nomenclature employed within 38 C.F.R. § 4.130.  

When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission must be considered.  38 C.F.R. § 4.126(a).  In addition, the evaluation must be 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.  Id.  Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment.  38 C.F.R. § 4.126(b).

Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated Diagnostic and Statistical Manual (Fifth Edition) (the DSM-5).  See 79 Fed. Reg. 45,094 (August 4, 2014).  VA adopted as final, without change, this interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014.  See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for Certain VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015).  

In the present case, the RO certified the Veteran's appeal to the Board in March 2015, which is after August 4, 2014.  Thus, the amended 38 C.F.R. § 4.125 conforming to the DSM-5 is applicable in the present case.  Regardless, the Board is cognizant that DSM-IV diagnoses and GAF scores are still evidence that should be considered in assessing claims.  The regulation change does not remove the previous diagnoses and GAF scores from the record; they are still evidence that has to be considered and weighed.  See VBA Live Manual, M21-1, Part III.iv.3.A.6.e (DSM-5 and Mental Disorders Specialty Examinations); Part III.iv.4.H.1.k. (Removal of the GAF Score From the DSM and Assigning Evaluations Based on Prior GAF Score).

As provided by the General Rating Formula, a 50 percent rating is assigned when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.   

A 70 percent rating is in order when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships.  Id.

A 100 percent rating is in order when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id. 

A veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating.  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Rather, the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating.  Id.  In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation.  Mauerhan, 16 Vet. App. at 442.

The Federal Circuit has clarified that the General Rating Formula for Mental Disorders requires not only (1) sufficient symptoms of the kind listed in the percentage requirements, or others of similar severity, frequency, or duration, but also (2) that those symptoms cause the level of occupational and social impairment specified in the regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013).  The Federal Circuit endorsed an approach whereby the Board would identify the symptoms associated with the service-connected mental health disability, determine whether they are of the kind enumerated in the regulation, and if so, assess whether they result in the level of occupational and social impairment specified by a particular rating.  Id.  The 70 percent disability rating regulation, in particular, contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies "in most areas."  Id.  Reading §§ 4.126 and 4.130 together, it is evident that the "frequency, severity, and duration" of a veteran's symptoms must play an important role in determining his disability level.  Id. at 117.  

In evaluating the evidence, the Board has also noted various GAF scores contained in the DSM-IV, which clinicians have assigned.  A GAF score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing DSM-IV at 32).  An examiner's classification of the level of psychiatric impairment at the moment of examination, by words or by a GAF score, is to be considered, but it is not determinative of the percentage VA disability rating to be assigned; the percentage evaluation is to be based on all the evidence that bears on occupational and social impairment.  See generally 38 C.F.R. § 4.126; VAOPGCPREC 10-95.  Stated another way, GAF scores may be considered in assigning the appropriate disability rating, but they are not the dispositive element in rating the level of impairment.  See Caluza, 7 Vet. App. at 506.

Higher GAF scores denote increased overall functioning of the individual.  For instance, a score of 31 to 40 represents "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school)."  DSM-IV at 46-47.  A score of 41 to 50 illustrates "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting); or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)."  Id.  A score of 51 to 60 represents "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning, (e.g., few friends, conflicts with peers or co-workers)."  Id.  Finally, a score of 61-70 illustrates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia) OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships."  Id.  

The Veteran's service-connected major depression with anxiety is rated under Diagnostic Code 9434 (major depressive disorder).  38 C.F.R. § 4.71a (2017).  

The Veteran has appealed the March 2011 rating decision that granted service connection for a psychiatric disability.  Staged ratings are appropriate when the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed.  Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007).  In this case, that date is July 21, 2010, the date the informal claim for service connection for a psychiatric disorder was filed by the Veteran.  

The RO has already staged the ratings for the Veteran's service-connected psychiatric disability.  From July 21, 2010 to November 20, 2014, the Veteran's major depression with anxiety is rated as 30 percent disabling.  

However, on and after October 18, 2014, the Veteran's major depression with anxiety is rated as 70 percent disabling.  The Veteran seeks a higher rating for both time periods.  

From July 21, 2010 to November 20, 2014, upon review, the Board finds the evidence of record is consistent with a higher, initial 50 percent rating for major depression with anxiety.  38 C.F.R. § 4.7.  That is, the Veteran's service-connected major depression with anxiety is manifested by psychiatric symptoms causing occupational and social impairment with reduced reliability and productivity, which are indicative of the 50 percent rating criteria.  See 38 C.F.R. § 4.130.  The Board has also considered additional, similar symptomatology not specifically addressed in the 50 percent criteria under the General Rating Formula, but causing the appropriate level of occupational and social impairment for a 50 percent rating, under the General Rating Formula.  See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

In making this determination, the Board has reviewed both the medical and lay evidence of record, including the lay statements from the Veteran and his representative; VA and private treatment records dated from 2009 to 2014; SSA disability records dated in 2010; and VA psychological examinations dated in December 2010 and July 2012.  

In particular, the following evidence of record supports a higher 50 percent rating for major depression with anxiety from July 21, 2010 to November 20, 2014:

In a July 2010 VA mental health medication management note, the Veteran reported suicide ideation - fleeting thoughts which include driving a car into an embankment (he had no access to a car).  

An August 2010 VA psychology outpatient E&M note recorded the Veteran's affect was blunted/restricted/constricted, and his mood depressed.  He was guarded, impulsive, and with limited insight.  As to suicide ideation, the Veteran stated that he intermittently gets impulses to crash his car into a wall for several years.  He is able to push away these thoughts, and there was no suicide ideation at the time of the examination.

A December 2010 VA psychological examination documented "occasional" nightmares, "flat" affect, reduced insight, anxiety and depression on testing at a "moderate" level, thoughts of death, past reports of suicide ideation, depression,  loss of interest in hobbies, low energy since 2006, hypervigilance, significant anger, isolation on testing, avoidance, numbness to others, "sometimes" poor attention,  and "so-so" memory.  He takes the psychiatric medication mirtazapine, has 3-4 a day panic attacks, and recent suicide ideation of driving off a cliff, causing him to stop driving.  He has an earlier history of domestic violence and assaults.  He added that his last suicide ideation was 11/2 years ago.

A February 2011 VA discharge summary commented the Veteran was in the VA "DOM 123 General program" for depression, anxiety, employment, and housing.  He was observed to have a depressed mood and "flat" affect, anger, and anxiety.  He has issues with homelessness and unemployment.

A July 2012 VA psychological examination noted social avoidance, nightmares, nervousness in public, the need for antidepressants, anxiety, depressed mood, insomnia, hypervigilance, exaggerated startled response, suspiciousness, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships.  These signs and symptoms support a higher 50 percent rating. 

An October 2012 VA mental health medication management note on Virtual VA commented the Veteran has depression after a friend died last week.  He is considering joining a depression group.  He has insomnia, and Remeron does help him sleep.  It was concluded the Veteran has an increased need for medication for depression and anxiety.  

An April 2013 VA mental health medication management note on Virtual VA remarked the Veteran did not feel any better on the higher dose of Wellbutrin he was prescribed.  His main concerns were about sleep and depression.  He has insomnia even when taking Remeron, but it's much worse when he does not take it.
Options were discussed for being more aggressive with medications.  Upon examination, the Veteran's mood was discouraged to depressed.  His affect was described as medium or serious.  

A July 2013 VA mental health outpatient E&M note on Virtual VA indicated the Veteran was struggling a bit with school.  His concentration is suboptimal, his mood remains low, but he sleeps well with quetiapine.  Appetite is good, and there is no suicide or homicide ideation.  He disclosed that his 14 year old daughter committed suicide in February 2013.  He described feeling numb about this.  He is staying sober, but attends alcohol meetings regularly.  Upon mental status examination, the Veteran wore sunglasses throughout the appointment.  He was quiet, reserved, and nonspontaneous.  His speech was soft and slow.  His mood and affect were "depressed."  

An October 2013 VA mental health outpatient E&M note on Virtual VA reported the Veteran remains depressed, as his friend and his daughter died recently.  His sleep is irregular.  He reported fleeting suicide ideation, with no plan or action.  Also, after his friend's death, he felt like hurting someone (no one in
particular), but he played a video game instead.  He attends AA and TAG meetings when able to.  He has difficulty with concentration.  Upon examination, he was wearing sunglasses and a blue-tooth earpiece throughout the appointment.  His speech was soft.  His mood and affect were depressed.  The VA medical professional concluded the Veteran's depressive symptoms were worse despite the addition of sertraline.  The Veteran says he would call a crisis line or come in for treatment if his suicide ideation worsened.  He is treatment seeking for his issues. 

A December 2013 VA mental health outpatient E&M note on Virtual VA remarked the Veteran still feels down, but sleep is improved.  Upon examination, he wore sunglasses throughout the appointment.  His mood and affect were "mildly dysphoric."  He felt his psychiatric medications were helping, but he was still constantly depressed.  He remains sober.  

A March 2014 VA mental health outpatient E&M note documented the Veteran was socially isolated, had difficulty concentrating, low mood, and was grieving his daughter's recent death.  He takes psychiatric medications, but is still able to attend school.  

Another important factor in support of a higher 50 percent rating is that many, but not all of the GAF scores in these records, are indicative of "moderate" or sometimes even "serious" psychiatric impairment.  See e.g., June 2009 VA psychology outpatient E&M note (GAF score of 50); October 2010 VA mental health medication management note (GAF score of 52); October 2010 VA mental health domiciliary note (GAF scores of 35 and 45); December 2010 VA psychological examination (GAF score of 55); January 2011 VA mental health consult (GAF score of 55); March 2011 VA domiciliary note (GAF scores of 50 to 100); October 2011 VA mental health note (GAF score of 60); July 2012 VA psychological examination (GAF score of 60); and March 2014 VA psychiatric treatment record of treating psychiatrist (GAF score of 55).  Although the GAF score is not dispositive of the rating that should be assigned, it is nonetheless probative evidence to assist in making this important determination.  38 C.F.R. §§ 4.2, 4.6.  These GAF scores are fully supportive of a higher 50 percent rating from July 21, 2010 to November 20, 2014, when viewed in the context of the Veteran's other psychiatric symptomatology documented above.  

In summary, consideration of the above psychiatric symptoms and circumstances reflect occupational and social impairment with reduced reliability and productivity.  This fully supports a higher 50 percent rating for the time period from July 21, 2010 to November 20, 2014.  See 38 C.F.R. § 4.130.  

In addition, the Board has considered that the above medical and lay evidence provides a basis for assigning a higher 50 percent initial rating for the Veteran's major depression with anxiety, even though several of the requirements for a higher rating are not shown.  See Mauerhan, 16 Vet. App. 436 (stating that the rating criteria provide guidance as to the severity of symptoms contemplated for each rating; they are not all-encompassing or an exhaustive list). 

However, from July 21, 2010 to November 20, 2014, the Veteran does not meet the criteria for an even higher 70 percent evaluation for his service-connected major depression with anxiety.  38 C.F.R. § 4.7.  That is, the medical and lay evidence of record is not indicative of someone with psychiatric symptomatology causing occupational and social impairment with deficiencies in most areas (the 70 percent rating criteria).  See 38 C.F.R. § 4.130.  The Board has also considered additional, similar symptomatology not specifically addressed in the 70 percent criteria under the General Rating Formula, but causing the appropriate level of occupational and social impairment for a 70 percent rating, under the General Rating Formula.  See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

In making this determination, the Board has reviewed both the medical and lay evidence of record, including the lay statements from the Veteran and his representative; VA and private treatment records dated from 2009 to 2014; SSA disability records dated in 2010; and VA psychological examinations dated in December 2010 and July 2012.  

In particular, the following evidence of record is not supportive of a higher 70 percent rating for major depression with anxiety from July 21, 2010 to November 20, 2014:

VA treatment records dated from 2010 to 2014 frequently remarked the Veteran was always oriented x 3.
  
A July 2010 VA mental health nursing outpatient E&M note provided a negative suicide risk screen.  

An August 2010 VA psychology outpatient E&M note documented no suicide ideation at the time of the examination.  The Veteran's thought content as to delusions and obsessions failed to reveal any abnormalities.  His grooming was appropriate.  

In an October 2010 VA mental health domiciliary note, the Veteran denied any current suicide ideation.  

An October 2010 SSA psychiatric review technique concluded the Veteran's depression was not severe, but rather "slight."  Overall there was "mild" severity of depression clinically with no functional limitations reported by the Veteran who was deemed credible.  He has insomnia.  The Veteran exhibited no restrictions with activities of daily living, social functioning, or concentration, even though he was experiencing a divorce and loss of his house.  His speech was clear and articulate.  His thoughts were organized.  He was in group therapy for alcoholism.  

A December 2010 VA psychological examiner stated the Veteran last worked as a bartender in January 2010, but has not worked since then after being struck by a car.  There was no indication this was due to his psychiatric problems.  On testing, the Veteran only exhibited a "moderate" level of depression and a "significant" level of anxiety and isolation.  His medications have improved his mood lately, he manages his finances and medications independently, and his last suicide ideation was 11/2 year ago.  He is able to make decisions without difficulty.  His actual suicide attempt was over 20 years ago in 1990.  Upon examination, speech and comprehension were within normal limits. There was no evidence for psychosis.  He did not have suicide ideation at the time of the examination.   

A February 2011 VA discharge summary noted GAF scores from 65 - 100, indicative of only "mild" impairment at that time.    

A June 2012 VA psychiatric treatment record documented a GAF score of 65, again indicative of only "mild" impairment at that time.    

A July 2012 VA psychological examination found there was no "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood."  This finding provides strong evidence against a higher 70 percent rating.  In support of this finding about the level of the Veteran's impairment, it was noted the Veteran is able to manage all daily needs independently.  He exhibited no near-continuous panic and depression impairing independence; no speech obscure or irrelevant; no inability to establish and maintain effective relationships; no suicide ideation; no obsessive rituals; no irritability with violence; no spatial disorientation and to time and place; no persistent delusions / hallucinations; and no neglect of personal appearance and hygiene.  

An April 2013 VA mental health medication management note on Virtual VA described the Veteran as staying clean and sober, and attending meetings regularly.  Upon mental examination, there was good eye contact, no visible distress or involuntary movements.  The Veteran appeared relaxed, but he was depressed.  His affect was not nervous or sad.  His thought process was organized.  He did not report suicidal or homicidal ideation.  As to cognition, his memory and judgment were intact and good.  

A July 2013 VA mental health outpatient E&M note on Virtual VA reflected the Veteran has no suicide or homicide ideation.  Although his daughter recently passed away, he was staying clean and sober, and attending meetings regularly.  His appetite was good, and he had no suicide or homicide ideation.  Upon mental examination, he arrived early and casually dressed.  He was quiet and reserved.  There was no psychomotor agitation or retardation.  His speech was soft, slow, and non-pressured.  His mood and affect were depressed.  His thought processes were linear, logical, with no suicide or homicide ideation.  He was attending school and future-oriented.

An October 2013 VA mental health outpatient E&M note on Virtual VA revealed the Veteran was still in school and had no psychosis.  He had some insomnia.  Upon examination, he was casually dressed and cooperative with no abnormal movements.  His speech was soft and nonpressured.  His mood and affect were depressed.  His thought processes were linear, logical, with no current suicide or homicide ideation.  It was noted his depressive symptoms were somewhat worse despite the addition of sertraline.  This was likely due to the deaths of his friend and daughter.  He was seeking treatment for fleeting suicide ideation without plan or intent.  He was future- oriented.

A December 2013 VA mental health outpatient E&M note on Virtual VA disclosed the Veteran's mood was better, but he was still depressed.  Medication was helping his mood.  He remains sober and attends a TAG group.  His grief has improved.  His appetite was good, and he reported no suicide or homicide ideation.  He was no longer angry or irritable.  Upon mental examination, he arrived early and was appropriately dressed for the weather.  He exhibited no abnormal movements.  His speech was fluent, non-pressured.  His mood and affect were mildly dysphoric.  His thought processes were linear, logical, with no current suicide or homicide ideation.   

A March 2014 VA mental health outpatient E&M note indicated the Veteran was socially isolated, had difficulty concentrating and low mood, but was still busy in school.  

Finally, an August 2014 VA TAG program note indicated the Veteran continued to participate in the program.   

From July 21, 2010 to November 20, 2014, the Board acknowledges that, in several VA psychology notes and VA examinations, the Veteran exhibited some of the symptoms listed under the 70 percent rating criteria, such as suicide ideation.  However, the severity, frequency, and duration of these symptoms are in question because in many instances in the record as alluded to above, the Veteran did not have suicide ideation.  In making this determination, the Board is aware of the Court's recent holding that "...the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas."  See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017).  However, most importantly, given the limited severity and frequency and duration of these suicidal symptoms, psychiatric symptomatology causing occupational and social impairment with deficiencies in most areas is not shown.  See again Vazquez-Claudio, 713 F.3d at 118 (the Veteran's psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula).  In summary, the evidence of record weighs more heavily against an initial 70 percent rating from July 21, 2010 to November 20, 2014.  The Veteran is adequately compensated for his level of occupational and social impairment by way of a 50 percent rating for this time period.  

From July 21, 2010 to November 20, 2014, the Board acknowledges that there were also a few instances of GAF scores indicative of or borderline to a possible higher rating.  See e.g., August 2010 VA psychology outpatient E&M note (GAF score of 50); October 2010 VA mental health domiciliary note (GAF scores of 35 and 45); March 2011 VA domiciliary note (admitting GAF score of 50, eventually improving to 100).  Nonetheless, the evidence of record discussed in detail above does not demonstrate the necessary level of occupational or social impairment commensurate with such GAF scores from July 21, 2010 to November 20, 2014,.  See Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004) (The Board does not err in determining that the criteria for a higher rating have not been met when taking all medical evidence into account, rather than allowing GAF scores alone to determine a rating for PTSD under DC 9411.).  See also 38 C.F.R. § 4.2 (It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.).  

Accordingly, from July 21, 2010 to November 20, 2014, the Board finds that the evidence supports an increased initial disability rating of 50 percent, but no higher, for the Veteran's service-connected major depression with anxiety.  38 C.F.R. § 4.3.  

Neither the Veteran nor his 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) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."  

      C.  IR Depression at 70 Percent

On and after November 20, 2014, the Veteran's major depression with anxiety is rated as 70 percent disabling.  The 70 percent rating assigned by the RO was based on the mental health observations contained in a November 20, 2014 VA mental health medication management note on Virtual VA.  It was noted on that day that the Veteran's depressive symptoms had been worsening recently.  

However, upon review of the evidence, on and after November 20, 2014, the Veteran does not meet the criteria for an even higher 100 percent evaluation for his service-connected major depression with anxiety.  38 C.F.R. § 4.7.  That is, the medical and lay evidence of record is not indicative of someone with psychiatric symptomatology causing total occupational and social impairment, which is required for the 100 percent rating.  38 C.F.R. § 4.130.  The Board has also considered additional, similar symptomatology not specifically addressed in the 100 percent criteria under the General Rating Formula, but causing the appropriate level of occupational and social impairment for a 100 percent rating, under the General Rating Formula.  See again Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  

In making this determination, the Board has reviewed both the medical and lay evidence of record, including the lay statements from the Veteran and his representative and his March 2016 hearing testimony; VA treatment records dated from 2014 to 2017; VA VR&E vocational records dated in 2015 and 2016; and VA psychological examinations dated in January 2015, June 2015, and March 2017.

In particular, the following evidence of record is not supportive of a higher 100 percent rating for major depression with anxiety on and after November 20, 2014:

A November 20, 2014 VA mental health medication management note on Virtual VA recorded worsening depression, but no suicide ideation or homicide ideation.  The Veteran had won custody of his son.  During the interview, his speech was normal, and there was no evidence of psychosis.  His memory and cognition were intact.  No active suicide ideation or homicide ideation was elicited.  The Veteran was deemed to know right from wrong and was able to conform to legal mandates.  He declined the need for inpatient treatment.  The Veteran did not appear to be a harm to himself or others at that time.

A December 2014 VA mental health admission evaluation note on Virtual VA acknowledged that the Veteran wanted treatment for his depression.  He reported panic attacks.  But it was added that "[c]learly he has greatly improved since having gotten on antidepressants and maintained sobriety."  The Veteran was observed as calm and serene.  He had good insight and judgment.  He was aware that the psychiatric medication helps him.  He was aware to stay clean and sober.  However, he does have panic attacks.  The diagnosis was "severe" major depression (but under "good" control), chronic dysthymia, and panic attacks.

A January 2015 VA psychological examiner concluded the Veteran's level of occupational and social impairment was "[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood."  This is indicative of a 70 percent rating under 38 C.F.R. § 4.130.  The Veteran reported he dated women.  But he has significant difficulty maintaining close or loving relationships to his son, girlfriend, family, fellow students, and teachers.  He also felt his reaction to losing his daughter to suicide was muted.  As discussed elsewhere, he reported frequent panic attacks along with feelings he will lose control and hurt himself or others.  As a result, his relationships are distant and he presents as a loner.

The January 2015 VA psychological examiner added the Veteran has been attending college with reasonable grades with the support of Chapter 31 VA vocational rehabilitation.  He was struggling during the fall semester due to his mental health problems.  He was seen for crises intervention and medications were increased to address these performance problems.  He has also remained actively engaged in the alcohol relapse prevention programming via the TAG Program.  He has been sober for 7 years.  In addition, he has attended regular medication management appointments with VA Psychiatry.  He has had multiple medication changes to attempt to treat his major depressive disorder with anxious distress.  More recently, Aripiprazole was added to in an effort to improve control of his depression and improve his school performance.  He has had no psychiatric inpatient admissions since 2012, but has been evaluated for admission and seen in VA Mental Health Urgent Care during crises.
 
The January 2015 VA psychological examiner, upon interviewing the Veteran, noted the Veteran denied any fights or altercations, but admits to having severe anger problems and fears he will act out violently if provoked.  Consequently, he avoids conflict whenever possible.  Upon examination, he cooperated fully with the VA examiner.  He exhibited no gross psychosis, no thought disorder, he was groomed and attired appropriately, and he can manage his financial affairs.  He was assigned a GAF score of 50, reflecting progression of serious impairment in social and occupational functioning.  Bu this level of GAF score was not indicative of impairment that was "major" or detached from reality.  See DSM-IV at 46-47.  It was noted his psychiatric disorder had worsened since 2012.  

March 2015 and June 2015 VA mental health group counseling notes confirmed the Veteran was attending the VA TAG program meetings. 

A June 2015 VA primary care risk assessment screening note demonstrated a negative depression screen.  

A June 2015 VA psychological examiner concluded the Veteran's level of occupational and social impairment was "[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood."  This is indicative of a 70 percent rating under 38 C.F.R. § 4.130.  The Veteran lives with his 13 year old son, of whom he was given sole custody.  The Veteran has occasional contact with his cousins.  The Veteran is fully independent in all activities of daily living including driving, managing finances, shopping, cooking, cleaning and caring for his son.  He also does grocery shopping; helps his son get ready for school; prepares dinner for his son; cleans                     the home together with his son; does laundry; and manages to be a full-time student at MATC studying chemical technology, for which he had a 3.8/4.0 GPA last semester.  He expects to work eventually.  His depression was considered "severe" but under good control with medication and sobriety.

The June 2015 VA psychological examiner also observed the Veteran to be appropriately groomed and social aspects of comportment were generally intact.  He was fully oriented and speech was fluent with normal articulation and rate and there was no indication of any type of cognitive impairment.  It was noted that affect was severely restricted in range and variability.  The Veteran was deemed capable of managing financial affairs.  As to functional impact, the VA examiner assessed the Veteran's service-connected mental health symptoms did not appear to significantly impact his educational functioning and therefore would be less likely to cause him to be unemployable based on his high level of functioning in the college setting over the past 6 months.  However, his psychiatric disorder would impact his ability to work in a hectic, stressful, or confrontational environment.  

At the March 2016 videoconference hearing, the Veteran reported his mental health has worsened since his last VA examination in June 2015.  He reported a greater frequency of panic attacks, during which he shakes.  These panic attacks occur two to three times a day, for 30-40 minutes.  He also has suicidal ideations, three to four times a week.  He maintained a 3.85 grade point average in chemical technology.  But he testified he was unable to complete the college program because of anxiety issues.  He cannot pour chemicals and be reliable at the same time because if something spills it's a danger.  He says he was not able to secure gainful employment due to panic attacks.  As to social relationships, the Veteran testified he cannot hold on to a steady relationship with a female or other people.  He only interacts with his family.  He lives with his 14 year old son, with whom his relationship is "pretty good."  He goes to group meetings with the VA TAG program, but has not gone much recently.  He visited his therapist three or four weeks ago.  He has had no inpatient hospitalization for his mental health issues, but around December 2015 he visited VA urgent care in Milwaukee due to anxiety attacks.  VA adjusted and added some psychiatric medications.  The Board finds the Veteran's hearing testimony is not supportive of someone with "total" social impairment.  See 38 C.F.R. § 4.130.    

A May 2016 VA VR&E closure report documented the Veteran's major depression and dysthymia is "severe" but under control by medication and sobriety and aftercare and active involvement in his son's life.  The Veteran successfully earned 38 credits at Milwaukee Area Technical College with a cumulative GPA of 2.6.  He successfully completed multiple core chemical technician courses.  In successfully completing the courses, he demonstrated the ability to successfully learn the information and apply it in his required training assignments.  Additionally through attending school and completing general education requirements, the Veteran learned transferable skills that are essential for any occupation: verbal and written communication, basic math principles, critical thinking, ability to work independently and with a team, and time management.  He did not resume Chapter 31 VA vocational rehabilitation training, in order to spend time with his son and focus on his disabilities.  The counselor assessed the Veteran could successfully obtain employment in the following entry level occupations that are within the field he studied: Central Lab Technician, Lab Assistant, and Healthcare Assistant.  It has been determined none of the above listed occupations would aggravate the Veteran's service-connected disabilities.  Various job postings were found in the Milwaukee area for lab-related positions.  The Veteran would qualify for all positions due to his training and education and would accommodate his disability limitations.  However, it was noted the Veteran is not pursuing nor is he interested in pursuing training or employment. 

VA psychiatric treatment records dated in 2015 and 2016 and 2017 noted the Veteran was oriented x 3 on many occasions.  Hygiene and grooming were adequate, cognition and memory intact, behavior organized and cooperative, and thought processes linear and appropriate.  These findings do not support the "total social impairment" necessary for a higher 100 percent rating.  See 38 C.F.R. § 4.130.    

A March 2017 VA psychological examiner concluded the Veteran's level of occupational and social impairment was "[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood."  This is indicative of a 70 percent rating under 38 C.F.R. § 4.130.  His last dating relationship ended approximately one year ago after three months.  The Veteran indicated this was the longest relationship he has had since his divorce.  The Veteran lives with his 15-year-old son.  The Veteran indicated that his son was doing very well and that they have "a great relationship."  The Veteran was currently prescribed clonazepam, fluoxetine, aripiprazole, and mirtazapine. The Veteran was also attending two separate therapy groups.  He reported that the therapy groups have been helpful and that the medication was helpful to some extent as well.

The March 2017 VA psychological examiner, upon interview of the Veteran regarding what constitutes a typical day, the Veteran reported that he is usually out of bed by 4 a.m.  He takes a shower, watches television, cooks dinner for his son, cleans up, and goes to bed by midnight.  He and his son share in household chores and shop together as well.  But the Veteran reported having no friends and no longer engaged in previously enjoyable hobbies.  He naps during the day and occasionally plays video games.  He also has several cousins who live in the area with whom he has occasional contact.

The March 2017 VA psychological examiner, upon examination of the Veteran, reflected that cognitive functions were within normal limits, although the Veteran noted mild short-term memory difficulties.  There was no evidence of an acute psychotic disorder.  There was no homicidal ideation, but there was suicide ideation.  The Veteran's current mental disability would have a severe adverse impact on his ability to secure and maintain employment of any type.  The Veteran's anxiety, panic attacks, sleep difficulties, and depression would impact on the Veteran's productivity and reliability.  In addition, he becomes increasingly anxious around others which would further restrict his ability to maintain employment in the company of others.  Still, the Veteran's cognitive functioning was within normal limits.

With regard to total occupational impairment, it is acknowledged the Veteran has been awarded a TDIU effective from November 20, 2014.  This was due to the severity of his service-connected major depression with anxiety.  As such, the criterion of total occupational impairment is present for the Veteran at this time.  

However, in light of the above evidence, the Board has determined that the Veteran does not have total social impairment.  See 38 C.F.R. § 4.130.  In this regard, the Board notes that the Veteran still has a good relationship with his son.  He keeps in contact with family members such as his cousins.  He participates in psychiatric therapy, a VA TAG group program, and engages in activities of daily living.  Thus, he can still maintain some relationships, albeit with significant limitations.  He was able to successfully complete multiple core chemical technician courses at college.   Moreover, the Board notes that the 70 percent evaluation he now has for major depression and anxiety encompasses an inability to establish and maintain effective relationships.  38 C.F.R. § 4.130.   In short, no medical or lay evidence of record reveals total social impairment for the Veteran on and after November 20, 2014.

The Board acknowledges that at the January 2015 and March 2017 VA psychological examinations, the Veteran exhibited some of the symptoms listed under the 100 percent rating criteria - that is, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.  At the March 2017 VA psychological examination, it was observed that the Veteran was "somewhat disheveled."  However, the severity and frequency and duration of these symptoms are in question because no other medical or lay evidence records document such symptoms on and after November 20, 2014.  In fact, his hygiene and grooming were often noted to be adequate in VA treatment records.  Moreover, given the limited severity and frequency and duration of these symptoms, the evidence of record fails to demonstrate total social impairment due any of the Veteran's psychiatric symptoms from his service-connected major depression with anxiety.  See again Vazquez-Claudio, 713 F.3d at 118 (the Veteran's psychiatric symptoms must cause the level of occupational and social impairment specified in the General Rating Formula).  In summary, the evidence of record weighs more heavily against an initial 100 percent rating, on and after November 20, 2014.  The Veteran is adequately compensated for his level of occupational and social impairment by way of a 70 percent rating for this time period.  

Accordingly, on and after November 20, 2014, the Board finds that the evidence of record does not support an initial rating greater than 70 percent for the service-connected major depression with anxiety.  38 C.F.R. § 4.3.  

Neither the Veteran nor his 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) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record)."  


ORDER

A higher 10 percent disability rating for a service-connected left fifth metacarpal (the left little finger) disability is granted.

From July 21, 2010 to November 20, 2014, an initial 50 percent rating for the Veteran's service-connected major depression with anxiety is granted.  

On and after November 20, 2014, an initial rating greater than 70 percent for the Veteran's service-connected major depression with anxiety is denied. 


REMAND

Before addressing the merits of the service connection for a thoracic spine disorder issue on appeal, the Board finds that additional development of the evidence is required.

A remand by the Board confers on the claimant a legal right to compliance with the remand order.  Stegall v. West, 11 Vet. App. 268, 271 (1998).  Substantial compliance with the remand order, not strict compliance, is required.  Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1999).  However, failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision.  Stegall, 11 Vet. App. at 271.

In the present case, the AOJ did not substantially comply with instruction #6 from the Board's earlier December 2016 remand instructions.  That is, the December 2016 Board remand instructed the AOJ to schedule the Veteran for the appropriate VA examination to determine the etiology of the Veteran's current degenerative arthritis of the thoracic spine and osteopenia of the thoracic spine.  

In fact, a VA spine examination was secured by the AOJ in March 2017.  However, the Board concludes the AOJ must obtain a VA addendum opinion from the same VA examiner who performed the March 2017 VA spine examination.  This is because the March 2017 VA spine examination is not fully adequate.  Specifically, the March 2017 VA spine examiner failed to directly answer the etiology questions as posed for the thoracic spine disorder issue on appeal.  

Specifically, in instruction #6 of the Board's December 2016 remand, the Board requested for the VA examiner to answer the following:

For the Veteran's currently diagnosed degenerative arthritis of the thoracic spine and osteopenia of the thoracic spine, is it at least as likely as not (i.e., 50 percent or more probable) that either disorder began during or is otherwise causally related to the Veteran's active service from March 1986 to September 1987 and from February 1990 to November 1990?  In particular, the VA examiner should address if the Veteran's documented in-service complaints and treatment for back pain and a muscle strain were early manifestations of his currently diagnosed degenerative arthritis of the thoracic spine or osteopenia of the thoracic spine.  In addition, the VA examiner should address whether the Veteran's currently diagnosed degenerative arthritis of the thoracic spine or osteopenia of the thoracic spine developed over time as the result of in-service airborne parachute school (tightness of his parachute harness and the stress on the spine caused by the jumps themselves).  If the AOJ is unable to secure the Veteran's SPRs as part of this remand, the VA examiner should assume the Veteran is credible in his description of being in airborne parachute school.

First, the May 2016 VA examiner concluded that the Veteran did not have a current, chronic diagnosis of osteopenia.  The VA examiner reasoned that following the diagnosis of osteopenia in July 2010 VA X-rays, the Veteran started treatment with Vitamin D and calcium.  The VA examiner indicated that a repeat bone density in November 2013 reported that the Veteran was within expected range for age.  The VA examiner concluded that the Veteran's osteopenia is more likely related to nutritional deficiency, since the osteopenia resolved after treatment with calcium and Vitamin D.  However, this medical opinion is somewhat confusing.  The Board has reviewed the November 2013 VA X-rays of the thoracic and lumbar spine on Virtual VA.  The November 2013 VA X-rays do not appear to establish that the Veteran's osteopenia "resolved."  Rather, the November 2013 VA X-ray report found that "[m]ild diffuse osteopenia is present, and is of uncertain etiology in a patient only 45 years old.  Possible causes are discussed in the impression below."  The impression followed by adding that possible causes of the Veteran's osteopenia include "disuse osteoporosis, nutritional deficiency, and steroids, among others."  Thus, a VA addendum opinion is necessary for the VA examiner to explain this discrepancy.  The VA examiner should explain the reasoning behind his conclusion that the Veteran no longer has osteopenia.     

Second, instruction #6 of the Board's December 2016 remand specifically instructed the March 2017 VA spine examiner to "assume the Veteran is credible in his description of being in airborne parachute school."  But instead, in addressing the etiology of the Veteran's thoracic spine disorder, the March 2017 VA examiner interpreted the instructions to mean "please do not consider any testimony regarding parachute school when rendering your opinion."  This was incorrect.  Moreover, upon remand, the AOJ secured service personnel records (SPRs) strongly suggesting the Veteran engaged in airborne parachute training during active duty.  In particular, a March 1986 SPR Statement for Enlistment (DA Form 3286-4) - advised that airborne parachute training may be required.  The Veteran agrees to volunteer to perform frequent aircraft flights and parachute jumps.  In addition, in a February 1990 SPR Statement for Enlistment (DA Form 3286-60/1), the Veteran stated "I am volunteering to perform frequent aircraft flights and parachute jumps and to participate in realistic combat training while receiving airborne training or performing airborne duty as a combat engineer."  Thus, the Board sees the Veteran was credible in his description of being in airborne parachute school.  The March 2017 VA spine examiner should take these facts into consideration when providing an addendum / clarification opinion as to the etiology of the Veteran's thoracic spine disorders.  The VA examiner should address whether the Veteran's currently diagnosed degenerative arthritis of the thoracic spine or osteopenia of the thoracic spine developed over time as the result of in-service airborne parachute school (tightness of his parachute harness and the stress on the spine caused by the jumps themselves).

In summary, a VA addendum opinion is necessary, in order to comply with the Board's earlier December 2016 remand.  The March 2017 VA spine examiner's opinion was not adequate.  If the same March 2017 VA spine examiner is not available, another qualified VA clinician will provide the addendum opinion.  Another VA spine examination is not necessary unless the VA examiner specifically requests one.   

Accordingly, the case is REMANDED for the following action:

1.  After any additional records are associated with the claims file, the AOJ should secure a VA addendum opinion from the March 2017 VA spine examiner.  If this VA examiner is no longer available, another qualified VA clinician must provide the addendum opinion.  Only if deemed necessary by the VA spine examiner is another physical examination necessary.  The entire claims file should be made available to and be reviewed by the VA examiner, and it should be confirmed that such records were available for review.  An explanation for all opinions expressed must be provided.

The VA examiner must directly answer the following question:  Is it at least as likely as not (i.e., 50 percent or more probable) the Veteran's currently diagnosed degenerative arthritis of the thoracic spine or osteopenia of the thoracic spine developed over time as the result of confirmed in-service airborne parachute school (tightness of his parachute harness and the stress on the spine caused by the jumps themselves).  The VA examiner is advised the Veteran is credible in his report of participating in airborne parachute school training during his military service.  

In rendering this opinion the VA examiner must address the following:

(a) The March 2017 VA examiner concluded that the Veteran did not have a current chronic diagnosis of osteopenia.  The VA examiner reasoned that following the diagnosis of osteopenia in July 2010 VA X-rays, the Veteran started treatment with Vitamin D and calcium.  The VA examiner indicated that a repeat bone density in November 2013 reported that the Veteran was within expected range for age.  The VA examiner concluded that the Veteran's osteopenia is more likely related to nutritional deficiency, since the osteopenia resolved after treatment with calcium and Vitamin D.  However, this medical opinion is somewhat confusing.  The Board has reviewed the November 2013 VA X-rays of the thoracic and lumbar spine on Virtual VA.  The November 2013 VA X-rays do not appear to establish that the Veteran's osteopenia "resolved."  Rather, the November 2013 VA X-ray report found that "[m]ild diffuse osteopenia is present, and is of uncertain etiology in a patient only 45 years old.  Possible causes are discussed in the impression below."  The impression followed by adding that possible causes of the Veteran's osteopenia include "disuse osteoporosis, nutritional deficiency, and steroids, among others."  Thus, a VA addendum opinion is necessary for the VA examiner to explain this discrepancy.  The VA examiner should explain the reasoning behind his conclusion that the Veteran no longer has osteopenia.     

(b) Instruction #6 of the Board's December 2016 remand specifically instructed the March 2017 VA spine examiner to "assume the Veteran is credible in his description of being in airborne parachute school."  But instead, in addressing the etiology of the Veteran's thoracic spine disorder, the March 2017 VA examiner wrote "please do not consider any testimony regarding parachute school when rendering your opinion."  This was incorrect.  Moreover, upon remand, the AOJ secured service personnel records (SPRs) strongly suggesting the Veteran engaged in airborne parachute training during active duty.  In particular, a March 1986 SPR Statement for Enlistment (DA Form 3286-4) advised that airborne parachute training may be required.  The Veteran agreed to volunteer to perform frequent aircraft flights and parachute jumps.  In addition, in a February 1990 SPR Statement for Enlistment (DA Form 3286-60/1), the Veteran stated "I am volunteering to perform frequent aircraft flights and parachute jumps and to participate in realistic combat training while receiving airborne training or performing airborne duty as a combat engineer."  Thus, the Board finds the Veteran was credible in his description of being in airborne parachute school.  The March 2017 VA spine examiner should take these facts into consideration when providing an addendum / clarification opinion as to the etiology of the Veteran's thoracic spine disorders.  The VA examiner should address whether the Veteran's currently diagnosed degenerative arthritis of the thoracic spine or osteopenia of the thoracic spine developed over time as the result of in-service airborne parachute school (tightness of his parachute harness and the stress on the spine caused by the jumps themselves).

2.  Review the claims file and ensure that the foregoing development actions have been conducted and completed in full.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).

3.  Thereafter, then consider all of the evidence of record and readjudicate the service connection for a thoracic spine disorder issue on appeal.  If the benefit sought is not granted, issue a Supplemental Statement of the Case (SSOC) and allow the Veteran and his representative an opportunity to respond.

The Veteran 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).




______________________________________________
DAVID L. WIGHT
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs