Citation Nr: 18145028 Decision Date: 10/26/18 Archive Date: 10/25/18 DOCKET NO. 12-30 223 DATE: October 26, 2018 ORDER Entitlement to an initial rating greater than 30 percent prior to August 2, 2012, greater than 50 percent prior to October 27, 2016, and greater than 70 percent thereafter, for an acquired psychiatric disability other than posttraumatic stress disorder (PTSD), to include adjustment disorder and depression, is denied. REMANDED Entitlement to a disability rating greater than 40 percent for a cervical spine disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to August 2, 2012, is remanded. FINDINGS OF FACT 1. The record evidence shows that, prior to August 2, 2012, the Veteran’s service-connected acquired psychiatric disability other than PTSD is manifested by, at worst, complaints of anxiety and reported social isolation and sleep difficulties. 2. The record evidence shows that, between August 2, 2012, and October 27, 2016, the Veteran’s service-connected acquired psychiatric disability other than PTSD is manifested by, at worst, complaints of increased irritability, social isolation, a depressed mood, and chronic sleep impairment. 3. The record evidence shows that, effective October 27, 2016, the Veteran’s service-connected acquired psychiatric disability other than PTSD is manifested by, at worst, chronic sleep disturbance, decreased concentration and focus, an inability to complete tasks, frequent mood changes, near-continuous depression, and suspiciousness. CONCLUSION OF LAW The criteria for entitlement to an initial rating greater than 30 percent prior to August 2, 2012, greater than 50 percent prior to October 27, 2016, and greater than 70 percent thereafter, for an acquired psychiatric disability other than PTSD, to include adjustment disorder and depression have not been met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code (DC) 9440 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from December 1973 to January 1977, April 1977 to April 1980, and from August 1989 to July 2000. The Veteran appointed his current attorney to represent him before VA by filing a completed VA Form 21-22a at the Agency of Original Jurisdiction (AOJ) in August 2015. This case has a long procedural history. Most recently, in September 2016, the Board granted the Veteran’s TDIU claim effective August 2, 2012, and remanded the other currently appealed claims to the AOJ for additional development. A review of the claims file shows that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board’s remand instructions were substantially complied with), aff’d, Dyment v. Principi, 287 F.3d 1377 (2002). The Board directed that the AOJ obtained updated treatment records for the Veteran, schedule the Veteran for appropriate examinations to determine the current nature and severity of his service-connected acquired psychiatric and cervical spine disabilities, and obtain a decision from VA’s Director, Compensation Service (“Director”), regarding his entitlement to a TDIU on an extraschedular basis prior to August 2, 2012. The identified records subsequently were associated with the claims file. The requested examinations occurred in October 2016. And the Director issued a decision in February 2018 denying the Veteran’s claim of entitlement to a TDIU on an extraschedular basis prior to August 2, 2012. 1. Entitlement to an initial rating greater than 30 percent prior to August 2, 2012, greater than 50 percent prior to October 27, 2016, and greater than 70 percent thereafter, for an acquired psychiatric disability other than PTSD, to include adjustment disorder and depression The Board finds that the preponderance of the evidence is against granting the Veteran’s claim of entitlement to an initial rating greater than 30 percent prior to August 2, 2012, greater than 50 percent prior to October 27, 2016, and greater than 70 percent thereafter, for an acquired psychiatric disability other than PTSD, to include adjustment disorder and depression. The Veteran essentially contends that his service-connected acquired psychiatric disability other than PTSD, to include adjustment disorder and depression (“acquired psychiatric disability”) is more disabling than currently (and initially) evaluated. The record evidence does not support his assertions during any of the 3 time periods at issue in this appeal. It shows instead that, prior to August 2, 2012, the Veteran’s service-connected acquired psychiatric disability is manifested by, at worst, complaints of anxiety and reported social isolation and sleep difficulties (as seen on VA examination in October 2010). For example, the Veteran’s service treatment records show no complaints of or treatment for an acquired psychiatric disability. The post-service evidence also does not support assigning an initial 30 percent rating prior to August 2, 2012, for the Veteran’s service-connected acquired psychiatric disability. For example, on outpatient treatment at Winn Army Community Hospital in March 2008, the Veteran’s complaints included dysthymia “and mood changes with poor sleep” in the previous several months. He separated from his wife in the previous year and his friends told him that they thought he needed help. The Veteran was “not suicidal but anxiety with sleep difficulties and dysthymia [was] noted.” The assessment included dysthymic disorder (depressive neurosis). In April 2008, no complaints were noted. The Veteran reported “[f]eeling better [but] still [with] some mood swings.” The assessment included dysthymic disorder (depressive neurosis). On VA mental disorders Disability Benefits Questionnaire (DBQ) in October 2010, the Veteran’s complaints included anxiety and social isolation. He was separated from his wife and had 3 adult children. Mental status examination of the Veteran showed he was clean and casually dressed, unremarkable psychomotor activity and speech, intact attention, full orientation, unremarkable thought process and thought content, reported sleep impairment, no delusions, hallucinations, inappropriate behavior, obsessive/ritualistic behavior, panic attacks, or suicidal or homicidal ideation, good impulse control, normal memory, an ability to maintain minimum personal hygiene, and no problems with activities of daily living. The Veteran’s Global Assessment of Functioning (GAF) score was 60, indicating moderate symptoms or moderate difficulty in social, occupational, or school functioning. The VA examiner concluded that the Veteran experienced an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks but with generally satisfactory functioning. This examiner also concluded that the Veteran “is primarily limited by [his] physical condition in that he is unable to lift in excess of 40 [pounds].” The Axis I diagnosis was adjustment disorder with depressed mood. Despite the Veteran’s assertions to the contrary, the record evidence shows that, prior to August 2, 2012, his service-connected acquired psychiatric disability is manifested by, at worst, complaints of anxiety and reported social isolation and sleep difficulties. The Veteran’s post-service outpatient treatment records document ongoing complaints of anxiety, mood swings, and dysthymic disorder. VA examination in October 2010 documented the Veteran’s complaints of anxiety, social isolation, and sleep difficulties. Mental status examination of the Veteran generally was within normal limits. His GAF score also reflected, at worst, moderate symptoms due to his service-connected acquired psychiatric disability. The October 2010 VA examiner specifically found that the Veteran’s service-connected acquired psychiatric disability resulted only in an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks although he had generally satisfactory functioning. This examiner also found that the Veteran’s primary limitations were due to his physical condition (and not because of his service-connected acquired psychiatric disability). In other words, the evidence supports the 30 percent rating currently assigned prior to August 2, 2012, under DC 9440 for the Veteran’s service-connected acquired psychiatric disability. See 38 C.F.R. § 4.130, DC 9440 (2017). There also is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for an initial rating greater than 30 percent prior to August 2, 2012, under DC 9440. Id.; see also Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). VA examination in October 2010 found normal speech and memory, good impulse control, and no delusions or hallucinations. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 30 percent prior to August 2, 2012, for his service-connected acquired psychiatric disability. Thus, the Board finds that the criteria for a disability rating greater than 30 percent prior to August 2, 2012, for an acquired psychiatric disability have not been met. The record evidence also does not support assigning an initial rating greater than 50 percent between August 2, 2012, and October 27, 2016, for the Veteran’s service-connected acquired psychiatric disability. It shows instead that this disability is manifested by, at worst, complaints of increased irritability, social isolation, a depressed mood, and chronic sleep impairment during this time period. The Board acknowledges initially that VA mental disorders DBQ on August 2, 2012, showed increased symptomatology attributable to his service-connected acquired psychiatric disability. For example, although the Veteran complained of increased irritability where “he becomes so irritated that he wishes to fight” at this examination, his reported psychiatric symptoms and severity otherwise were consistent with his most recent VA examination in October 2010. The Veteran experienced passive suicidal ideation and avoided social situations and stress. He again reported experiencing chronic sleep impairment. He stated that he coped with his feelings of irritability and a desire to engage in violence “by remaining solitary.” Mental status examination of the Veteran showed chronic sleep impairment, a flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The VA examiner concluded that the Veteran experienced an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks but with generally satisfactory functioning. The Veteran’s GAF score of 59 indicated moderate symptoms and the diagnosis was unchanged from October 2010. On VA mental disorders DBQ in April 2014, the Veteran’s complaints included depression following a recent right foot amputation which left him wheelchair bound and essentially homebound. Mental status examination of the Veteran showed he was neatly and casually dressed, full orientation, good eye contact, a depressed mood, and in a wheelchair. The diagnosis was unchanged. Despite the Veteran’s assertions to the contrary, the record evidence does not support assigning an initial rating greater than 50 percent between August 2, 2012, and October 27, 2016, for his service-connected acquired psychiatric disability. It shows instead that, although the symptomatology attributable to this disability worsened effective August 2, 2012, it does not merit more than a 50 percent rating under DC 9440 at any time during this time period. See 38 C.F.R. § 4.130, DC 9440 (2017). For example, VA examination on August 2, 2012, documented the Veteran’s complaints of increased irritability and a desire to engage in violence although the Veteran reported that he coped with his increased irritability towards others by staying by himself. Critically, the August 2012 VA examiner noted that, with the exception of his reported increased irritability, the Veteran’s reported psychiatric symptoms and severity otherwise were consistent with his most recent VA examination in October 2010. The Veteran also experienced passive suicidal ideation and chronic sleep impairment and avoided social situations and stress. The VA examiner concluded that the Veteran’s service-connected acquired psychiatric disability only resulted in an occasional decrease in work efficiency with intermittent periods of an inability to perform occupational tasks although he had generally satisfactory functioning. The Veteran’s August 2012 GAF score was virtually identical to his prior GAF score, indicating moderate impairment, and his diagnosis was unchanged from prior examinations. The findings obtained on VA examination in April 2014 suggest that the Veteran was more depressed due to physical limitations following a recent right foot amputation and becoming wheelchair bound and essentially homebound as a result of this amputation. In other words, the evidence supports the 50 percent rating currently assigned between August 2, 2012, and October 27, 2016, under DC 9440 for the Veteran’s service-connected acquired psychiatric disability. Id. There also is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for an initial rating greater than 50 percent between August 2, 2012, and October 27, 2016, under DC 9440. Id.; see also Vazquez-Claudio, 713 F.3d at 112. The August 2012 VA examiner noted only that the Veteran’s reported irritability had worsened since his prior VA examination in October 2010. Otherwise, this examiner concluded that the symptomatology and severity of the Veteran’s reported symptoms of his service-connected acquired psychiatric disability were unchanged from October 2010. And mental status evaluation in April 2014 showed a depressed mood. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 50 percent between August 2, 2012, and October 27, 2016, for his service-connected acquired psychiatric disability. Thus, the Board finds that the criteria for an initial rating greater than 50 percent between August 2, 2012, and October 27, 2016, for an acquired psychiatric disability have not been met. The record evidence finally does not support assigning an initial rating greater than 70 percent effective October 27, 2016, for the Veteran’s service-connected acquired psychiatric disability. It shows instead that this disability is manifested by, at worst, chronic sleep disturbance, decreased concentration and focus, an inability to complete tasks, frequent mood changes, near-continuous depression, and suspiciousness. The Board acknowledges here that VA mental disorders DBQ on October 27, 2016, showed increased symptomatology attributable to the Veteran’s service-connected acquired psychiatric disability. For example, at this examination, the Veteran reported “having limited social support” because he did not have any friends, continued to live alone, and had family who lived “about 20 miles away” from him. “[The] Veteran spends the majority of his time sleeping during the day” due to his cervical spine pain and did not often leave his house. He only got 2-4 hours of sleep per night due to his cervical spine pain and did not “feel rested when he wakes for the day.” His concentration and focus were decreased and he was “unable to complete most tasks [with a] lack of motivation and desire” for activities. He reported that his mood changed quickly and did not leave his house very often “due to his poor mood and the likelihood that he would get into an argument with others.” Mental status examination of the Veteran in October 2016 showed he was casually dressed, neatly groomed, good eye contact, appropriate thought content, linear and goal-directed thought process, a depressed mood, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, flattened affect, no suicidal ideation, homicidal ideation, delusions, or audio or visual hallucinations, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The VA examiner concluded that the “Veteran experiences mood and sleep disturbance, anger, low frustration tolerance, and irritability.” This examiner also concluded that the Veteran “has limited social support” and experienced moderate symptoms with moderate impact on his social and occupational functioning. The diagnosis was unspecified depression. Despite the Veteran’s assertions to the contrary, the record evidence does not support assigning an initial rating greater than 70 percent effective October 27, 2016, for his service-connected acquired psychiatric disability. It shows instead that, although the symptomatology attributable to this disability worsened effective October 27, 2016, it does not merit more than a 70 percent rating under DC 9440. See 38 C.F.R. § 4.130, DC 9440 (2017). The Board acknowledges that the symptomatology attributable to the Veteran’s service-connected acquired psychiatric disability worsened on VA examination on October 27, 2016. At that examination, the Veteran reported – for the first time – that he spent most of the day sleeping by himself at home due to cervical spine pain, although he did not feet rested when he awoke, and did not often leave his house because his mood changed quickly and he believed this would lead to arguments with others outside of his home. He had decreased concentration and focus, could not complete most tasks, and had little desire to pursue any activities. Mental status examination of the Veteran showed suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, and mild memory loss. The October 2016 VA examiner concluded that the “Veteran experiences mood and sleep disturbance, anger, low frustration tolerance, and irritability.” This examiner also concluded that the Veteran “has limited social support” and experienced moderate symptoms with moderate impact on his social and occupational functioning. In other words, the evidence supports the 70 percent rating currently assigned effective October 27, 2016, under DC 9440 for the Veteran’s service-connected acquired psychiatric disability. Id. There also is no indication that the Veteran experienced symptoms of similar frequency, severity, and duration as is required for an initial rating greater than 70 percent effective October 27, 2016, under DC 9440. Id.; see also Vazquez-Claudio, 713 F.3d at 112. Although the Veteran reported in October 2016 that he did not leave his house often due to physical pain and mood changes, he also reported that he still was driving using his left foot and his friend drove him to this examination. He reported further that he did household chores and cooked for himself. The VA examiner concluded that the Veteran “is capable of completing personal hygiene tasks independently.” And only mild memory loss was noted on mental status evaluation. The Veteran also has not identified or submitted any evidence demonstrating his entitlement to an initial rating greater than 70 percent effective October 27, 2016, for his service-connected acquired psychiatric disability. Thus, the Board finds that the criteria for an initial rating greater than 70 percent effective October 27, 2016, for an acquired psychiatric disability have not been met. REASONS FOR REMAND The Veteran contends that his service-connected cervical spine disability is more disabling than currently evaluated. He also contends that he is entitled to a TDIU on an extraschedular basis prior to August 2, 2012 (when the Board granted this claim in September 2016). Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding these claims again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). 1. Entitlement to a disability rating greater than 40 percent for a cervical spine disability is remanded. The Veteran reported for VA neck (cervical spine) conditions DBQ in October 2016. Unfortunately, following this examination, the Court issued a decision in Correia mandating new requirements for VA examinations of musculoskeletal disabilities (including disabilities of the cervical spine, as in this case) in order to satisfy judicial review in increased rating claims. See Correia v. McDonald, 28 Vet. App. 158 (2016). The Court held in Correia that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. A review of the record evidence shows that the Veteran’s VA neck (cervical spine) conditions DBQ in October 2016 did not comply with Correia. For example, there is no indication in this examination report whether the cervical spine range of motion obtained is active or passive or in weight-bearing or non-weight-bearing. Accordingly, the Board finds that, on remand, the Veteran should be scheduled for updated VA examination to determine the current nature and severity of his service-connected cervical spine. See also Southall-Norman v. McDonald, 28 Vet. App. 346 (2016) (finding 38 C.F.R. § 4.59 not limited to diagnostic codes involving range of motion and extending Correia to disabilities involving painful joint or periarticular pathology). 2. Entitlement to a TDIU on an extraschedular basis prior to August 2, 2012, is remanded. Adjudication of the increased rating claim for a cervical spine disability by the AOJ likely will impact adjudication of the TDIU claim. Thus, the Board finds that both of these claims are inextricably intertwined and adjudication of the TDIU claim must be deferred. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected cervical spine disability. 2. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Michael T. Osborne, Counsel