Citation Nr: 18141670 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-25 110 DATE: October 11, 2018 ORDER Entitlement to service connection for right hip disability, secondary to service-connected residuals of a right femur fracture and lumbar spine degenerative changes, is granted. Entitlement to an initial rating of 50 percent for adjustment disorder with mixed anxiety and depressed mood is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to an increased rating lumbar spine degenerative changes, currently rated 20 percent, is remanded. Entitlement to an increased rating for residuals of a right femur fracture, currently rated 20 percent, is remanded. FINDINGS OF FACT 1. The Veteran’s current right hip disability is caused by residuals of a right femur fracture and lumbar spine degenerative changes. 2. Since the award of service connection, the Veteran’s service-connected adjustment disorder with mixed anxiety symptoms and overall impairment have more nearly approximated reduced reliability and productivity, but not deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for service connection for right hip strain, secondary to service-connected residuals of a right femur fracture and lumbar spine degenerative changes, have been met. 38 U.S.C. §§ 1131, 5107(b) (2012); 38 C.F.R. § 3.310 (2017). 2. The criteria for an initial 50 percent rating, but no higher, for adjustment disorder with mixed anxiety and depressed mood, have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to September 1982. This matter came to the Board of Veterans’ Appeals (Board) on appeal from December 2011 and July 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In the December 2011 rating decision, the RO, inter alia, denied entitlement to service connection for right hip disability. In that decision, the RO also continued a 20 percent evaluation for service-connected residuals of fracture right femur and lumbar spine degenerative changes disabilities. In September 2012, the Veteran disagreed with the RO’s determinations. In the July 2013 rating decision, the RO granted service connection for adjustment disorder with mixed anxiety and depressed mood and assigned a 30 percent disability rating, effective September 17, 2012. In that decision, the RO also denied entitlement to total a disability rating based on individual unemployability due to service-connected disabilities (TDIU). In August 2013, the Veteran disagreed with the RO’s determination. In a May 2016 rating decision, the RO, granted an earlier effective date of February 28, 2012 for adjustment disorder with mixed anxiety and depressed mood, and continued the initial 30 percent evaluation. In that decision, the RO also granted entitlement to TDIU, effective the September 17, 2012 date of claim. The grant of TDIU effective the date of claim constitutes a full award of the benefits sought on appeal with respect to that issue. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). With respect to the issue of adjustment disorder with mixed anxiety and depressed mood, this issue remains in appellate status, as the maximum available benefit has not been assigned from the effective date of the award of service connection. AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Right Hip disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to, the result of, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310 (a), (b). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. The Veteran seeks service connection for right hip disability. Specifically, he contends that such disability is secondary to his service-connected lumbar spine and right femur disabilities. The record on appeal reflects that the Veteran currently has a right hip disability. Specifically, at the December 2010 VA examination, the examiner diagnosed right hip strain. The examiner opined that it is as least as likely as not that the Veteran’s right hip strain is caused by or the result of service-connected residuals of fracture right femur and degenerative changes of the lumbar spine. The examiner reasoned that in a review of the current medical literature it was found that most hip sprains or strains occur from an accident or traumatic impact to the hip, such as a fall or direct and forceful contact (a contusion), or overuse, or overstretching of the muscles or ligaments in the hip. The examiner noted that the result can be small tears in the muscle fibers, tendons or ligaments, which may be mild, moderate or severe in nature which can cause the hip to be more susceptible to reinjury, and that the Veteran sustained a fall to the R hip causing a femur fracture while on active duty. The Board finds that the evidence showing a current diagnosis of right hip strain, and a nexus opinion indicating that it is caused by the service connected residuals of fracture right femur and lumbar spine degenerative changes, provides a sufficient basis to grant service connection for right hip strain on a secondary basis. Entitlement to service connection for right hip strain is therefore warranted. Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. 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. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. 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. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The criterion for rating unspecified anxiety disorder is contained in the General Rating Formula for Mental Disorders. C.F.R. § 4.130, Diagnostic Code 9413. Under those criteria, a 30 percent rating is assigned where there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, due to such symptoms as: depressed mood, anxiety, suspiciousness, weekly or less often panic attacks, chronic sleep impairment, or mild memory loss, such as forgetting names, directions, recent events. A 50 percent rating is warranted when there is objective evidence demonstrating 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, for example, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned when there is objective evidence demonstrating 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, or effectively; impaired impulse control, such as unprovoked irritability with periods of violence; spatial disorientation, neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships. A 100 percent rating is warranted 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 and place, memory loss for names of close relatives, own occupation, or own name. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.” Id. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 2. Adjustment Disorder with Mixed Anxiety and Depressed Mood The Veteran seeks an initial rating in excess of 30 percent for service-connected adjustment disorder with mixed anxiety and depressed mood. He contends that the rating currently assigned does not reflect the severity of the disability. Applying the facts in this case to the criteria set forth above, the Board finds that an initial rating of 50 percent, but no higher, is warranted for the Veteran’s adjustment disorder with mixed anxiety and depressed mood. In this case, the evidence of record demonstrates that the throughout the entire period on appeal, the Veteran’s adjustment disorder with mixed anxiety was manifested by symptoms that more nearly approximate occupational and social impairment required for an initial 50 percent rating, but no higher. For example, a September 2012 VA treatment record indicates that the Veteran exhibited a flattened affect, and his dysthymic and mood was congruent. His insight and judgment fair, yet slightly impaired by pain and depression. The Veteran reported problems with his memory for immediate, recent and remote events. A May 2013 VA examination report indicates that the Veteran exhibited disturbances of motivation and mood, depression, and anxiety. He had difficulty falling or staying asleep. The Veteran reported that he did not have many friends, and spends much of his time outside on the swing. He indicated that he had lost interest in most things due to the reality of life, and this has been since he had stopped working. The examiner noted that the Veteran was guarded. The examiner concluded that the Veteran exhibited social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. The Board acknowledges the opinion of the May 2013 VA examiner, who concluded that the Veteran occupational and social impairment due to mild or transient symptoms with decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. However, the question of which criteria the Veteran’s psychiatric symptoms and impairment most nearly approximate is a legal and not a medical one. 38 C.F.R. § 3.100(a) (delegating the Secretary’s authority “to make findings and decisions... as to the entitlement of claimants to benefits” to, inter alia, VA “adjudicative personnel”); 38 C.F.R. § 4.2 (“It is the responsibility of the rating specialist to interpret reports of examination... so that the current rating may accurately reflect the elements of disability present.”); VA Adjudication Procedures Manual, M21-1, Part III, Subpart. iv, Chapter 3, Section A.7.i (updated Oct. 28, 2015) (“Do not request a medical authority to make conclusions of law, which is a responsibility inherent to the rating activity”). The above evidence including the competent and credible lay statements from the Veteran, and the medical records, reflects that the evidence is at least evenly balanced as to whether the Veteran’s adjustment disorder with mixed anxiety and depressed mood symptoms and impairment more nearly approximate the occupational and social impairment with reduced reliability and productivity required for a 50 percent rating. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a 50 percent rating for adjustment disorder with mixed anxiety is warranted. The evidence of record indicates that the Veteran’s symptoms and overall level impairment do not more nearly approximate the occupational and social impairment with deficiencies in most areas required for a 70 percent rating. For example, at the September 2012 VA evaluation, the Veteran was appropriately groomed and dressed. He was able to focus, pay attention, and maintain eye contact. The Veteran’s thought content was within normal limits. He denied suicidal ideation. The Veteran reported that he has a girlfriend and a good relationship with his children. He further noted that his parents are significant in his life and live in his area. During the May 2013 VA examination, the Veteran denied suicidal and homicidal ideation, episodes of violence, and impulsivity. He did not exhibit obsessional rituals which interfered with routine activities, nor near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively. The Veteran was oriented to person, place, and date. He exhibited appropriate speech. The Veteran did not exhibit neglect of personal hygiene and appearance as due to his psychiatric disorder. The VA examiner noted that the Veteran’s clothing appeared clean, although his jeans appeared worn. His hair was long and somewhat messy, but appeared clean. The Veteran noted that he has rotting teeth that he cannot afford to get fixed, which may be a factor in terms of bad breath. Moreover, there is no evidence of the Veteran’s inability to establish effective relationships. For example, the Veteran has been divorced twice, with the first marriage ending, because, they “outgrew each other” and the second marriage ending, because they, “did not get along”. The Veteran reported that he currently has a girlfriend that he has lived with for seven years. He described their relationship as fair, and denied any acute stressors at that time. He stated that his relationship with his kids was good and he sees them a few times a week. The Veteran further noted that he sees his father weekly, his sister often, and his grandchildren on the weekends. Thus, the evidence reflects that the Veteran’s symptoms and overall impairment do not more nearly approximate the occupational and social impairment with deficiencies in most areas required for a 70 percent rating. For the reasons set forth above, an initial 50 percent rating, but no higher, is warranted for adjustment disorder with mixed anxiety and depressed mood. As the preponderance of the evidence is against any higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. 5107 (b); 38 C.F.R. 4.3. REASONS FOR REMAND 1. Lumbar Spine / Right Femur The Veteran was most recently afforded VA back and hip and thigh examinations in June 2013 in connection with his increased rating claims. However, in light of a recent decision issued by the United States Court of Appeals for Veterans Claims (Court), a remand is required. Specifically, the Court held that 38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing. Correia v. McDonald, 25 Vet. App. 158 (2016). In this case, the VA examination reports did not include these findings. Although the Board sincerely regrets the delay, it is necessary to ensure that the VA examinations comply with the requirements of Correia and other Court holdings. Therefore, on remand, the Veteran should be afforded another VA examination to ascertain the severity and manifestations of his service-connected lumbar spine with degenerative changes and residuals of a right femur fracture. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination or examinations to determine the current severity of his service-connected lumbar spine disability and right femur fracture residuals. The examination should be conducted in accordance with the current disability benefits questionnaire, to include compliance with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Walker, Associate Counsel