Citation Nr: 18145190 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 11-30 815 DATE: October 30, 2018 ORDER Entitlement to service connection for depressive disorder, not otherwise specified (NOS), is granted. Effective February 19, 2010, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a rating in excess of 10 percent for service-connected patellar tendonitis, right knee (right knee disability) is remanded. Entitlement to a rating in excess of 10 percent for service-connected patellar tendonitis, left knee (left knee disability) is remanded. Entitlement to a rating in excess of 10 percent for service-connected post left clavicle fracture is remanded. Entitlement to a rating in excess of 10 percent for service-connected status post right wrist fracture (right wrist disability) is remanded. Entitlement to a rating in excess of 10 percent for service-connected scoliosis with intermittent symptomatic lumbar paraspinal tendonitis with status post coccygeal fracture and degenerative arthritis (lumbar spine disability) is remanded. FINDING OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, his depressive disorder, NOS is at least as likely as not related to his military service. 2. The evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, effective February 19, 2010. CONCLUSIONS OF LAW 1. The criteria for service connection for depressive disorder, NOS are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a) (2017). 2. The criteria for the award of TDIU are met, effective February 19, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.25 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1995 to May 2005. 1. Entitlement to service connection for an acquired psychiatric disorder The Veteran claims entitlement to service connection for an acquired psychiatric disorder as a result of his military service. The Board concludes that the Veteran’s diagnosed depressive disorder, NOS with anxiety and depressive symptoms is related to his military service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). By way of background, the Veteran filed a claim for service connection for depression and anxiety in March 2010. A March 2010 VA treatment record notes the diagnosis of adjustment disorder associated with the Veteran’s diagnosis and treatment for lupus. In a May 2010 statement, the Veteran stated that he had been suffering from anxiety and depression on different levels since his discharge from service. The RO denied the Veteran’s claim in a September 2010 rating decision, characterizing the issues as Entitlement to service connection for adjustment disorder (claimed as anxiety and depression). The Veteran disagreed and perfected this appeal. Notably, in May 2011, the Veteran contacted the agency of original jurisdiction (AOJ) to file a claim for service connection for posttraumatic stress disorder (PTSD), anxiety, and depression. In January 2013, the Veteran underwent a VA examination. He was diagnosed with PTSD and depressive disorder NOS with anxiety and depressive symptoms. The examiner noted that it was not possible to differentiate which psychiatric symptoms were attributable to each diagnosis because his depression related symptoms, anxiety symptoms, and PTSD symptoms were interrelated. Ultimately, the examiner concluded that the Veteran’s PTSD and depressive disorder NOS with anxiety and depressive symptoms were related to his military service. In a May 2013 rating decision, the AOJ granted service connection for PTSD, effective May 26, 2011, the day his claim for PTSD was received. The AOJ did not specifically award service connection for depressive disorder NOS. Following a July 2016 VA examination, in which the examiner diagnosed the Veteran with generalized anxiety disorder, the AOJ issued a rating decision in October 2016 that recharacterized his service-connected disability as generalized anxiety disorder, and not PTSD; the Veteran’s 50 percent disability rating was continued. The Veteran did not disagree with this recharacterization. While these actions occurred, the Veteran’s original March 2010 service-connection claim remained pending. The Board has expanded the Veteran’s March 2010 claim for “depression and anxiety” to include consideration as to whether service connection can be awarded for any diagnosed mental health disability. As noted above, service-connection has already been awarded for general anxiety disorder (formerly diagnosed as PTSD). Thus, no case or controversy remains with respect to that diagnosis. The Veteran had a one-time diagnosis of adjustment disorder in March 2010; however, the probative medical evidence supports a finding that adjustment disorder was due specifically to the Veteran’s nonservice connected lupus at the time. See March 2010 VA Mental Health Nursing Note. Thus, service-connection for adjustment disorder is not warranted. Although the record at one point included a PTSD diagnosis, as discussed above, the AOJ awarded service connection for PTSD, but then recharacterized the disability as generalized anxiety disorder based on subsequent medical evidence indicating that a PTSD diagnosis was incorrect. The Veteran did not disagree with this recharacterization, nor has he subsequently asserted that he now has PTSD. While some recent VA treatment records continue to note PTSD, those records specifically indicate that the assessment of PTSD by history and not a new diagnosis. See April 2017 VA Mental Health Physician Note; April 2018 VA Mental Health Physician Note. The only mental health disability for which the Veteran has a diagnosis, which has not been subject to a prior service-connection award, or specifically found to be unrelated to service is his depressive disorder NOS, diagnosed at the January 2013 VA examination. As noted above, the January 2013 VA examiner diagnosed depressive disorder NOS and linked it to service along with the Veteran’s misdiagnosed PTSD. The Board finds the January 2013 VA examination is the most probative evidence of record addressing the etiology of the Veteran’s depressive disorder. Significantly, the opinion clearly reflects consideration of the pertinent evidence of record, including the Veteran’s history, and includes a detailed and reasoned opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In summation, after resolving all reasonable doubt in the Veteran’s favor, the evidence supports a finding that his diagnosed depressive disorder NOS is related to his military service. Consequently, service connection is warranted. 2. Entitlement to a TDIU due to service-connected disabilities The Veteran contends that his service-connected disabilities prevent him from maintaining gainful employment. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). Currently, the Veteran is in receipt of a TDIU, effective April 6, 2011. In the May 2013 rating decision that awarded a TDIU, the AOJ noted that April 6, 2011, was the day his formal application for a TDIU was received. However, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), because entitlement to a TDIU was raised in connection with the Veteran’s claim for increased ratings for his service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability, which was received on February 19, 2010, the question before the Board is whether a TDIU is warranted from February 19, 2010 to April 5, 2011. A total disability rating for compensation may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). From February 19, 2010, to April 5, 2011, the Veteran was service-connected for the following disabilities: bronchial asthma, rated as 30 percent disabling; left knee disability, rated as 10 percent disabling; right knee disability, rated as 10 percent disabling; left clavicle fracture, rated as 10 percent disabling; right wrist disability, rated as 10 percent disabling; chronic bilateral tinnitus, rated as 10 percent disabling; lumbar spine disability, rated as 10 percent disabling; bilateral pes cavus, rated as 10 percent disabling; intermittent symptomatic anterior cervical lymphadenopathy with inflammatory relations, rated as noncompensable; right back lipoma, rated as noncompensable; human papilloma virus, rated as noncompensable; and post-operative scar, right knee, rated as noncompensable. His combined disability rating was 70 percent and, while he did not have a single disability rated as 40 percent or higher, the combined disability rating for his orthopedic disabilities was 50 percent. See 38 C.F.R. § 4.16(a), 4.25. Thus, from February 19, 2010, to April 5, 2011, the Veteran met the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). The Board notes that the AOJ has not had an opportunity to assign an initial rating and effective date for the award of service connection for depressive disorder NOS with anxiety and depressive symptoms; however, because the Veteran meets the schedular criteria for a TDIU based on his currently-rated disabilities, and the assignment of an initial rating and effective date will not impact the decision with respect his claim, the Board may proceed to the merits of his claim for a TDIU prior to April 6, 2011. The remaining inquiry, therefore, is whether the Veteran was unable to secure or follow substantially gainful employment due solely to his service-connected disabilities during that period. In a May 2010 statement, the Veteran indicated that, due to the severity of his service-connected left knee, his doctor had not cleared him to return to work. In May 2010, the Veteran underwent a VA examination of his service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability. With regard to his knees, the Veteran reported weakness, stiffness, swelling, giving way, a lack of endurance, fatigability, tenderness, and pain. He reported he experienced flare-ups as often as once per day, which were precipitated by physical activity. With regard to his post clavicle fracture, the Veteran reported tenderness, pain, problems with movement, and popping. He reported he experienced flare-ups as often as once per day, which were precipitated by physical activity. With regard to his post clavicle fracture, the Veteran reported heat, redness, giving way, a lack of endurance, fatigability, tenderness, pain, and aching. He reported experiencing flare-ups as often as once per day, which were precipitated by physical activity and repetitive use. Finally, with regard to his lumbar spine disability, the Veteran reported limited mobility, stiffness fatigue, spasms, decreased motion, paresthesia, and numbness. His pain was exacerbated by physical activity and prolonged sitting, and during flare-ups he experienced pain with prolonged sitting. Concerning the effects of the Veteran’s disability on his usual occupation, the examiner noted pain with lifting, prolonged standing, walking, squatting, climbing, and bending. In his April 2011 formal claim for a TDIU, the Veteran indicated that he last worked in May 2010 as a heating and air conditioning technician. He indicated that he stated a training program in June 2010, but stated that he could not finish due to the side effects of the medications he was on. His highest level of education was completing high school. In January 2012, the Veteran’s former employer indicated that he last worked in January 2010 as a heating, ventilation, and air conditioning (HVAC) service technician, but stopped working as a result of “long term disability.” Based on the foregoing, the Board finds the Veteran’s service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability rendered him unemployable, effective February 19, 2010, the day his claim for increased ratings was received. Significantly, as noted above the VA examiner who performed the May 2010 VA examination concluded that the Veteran’s service-connected disabilities listed above resulted in pain with lifting, prolonged standing, walking, squatting, climbing, and bending, which are functional abilities one would associate with a HVAC service technician. Therefore, entitlement to a TDIU is granted from February 19, 2010. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to ratings in excess of 10 percent for service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability are remanded. In accordance with the Board’s February 2017 remand, the Veteran underwent VA examinations in May 2018 to address the current nature and severity of his service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability. In addition to other clinical findings, the examiner noted his reports of flare-ups, as well as his reports of functional loss. As to whether pain, weakness, fatigability, or incoordination significantly limited the Veteran’s functional ability following repeated use or during flare ups, the examiner stated that she was unable to provide an opinion without resort to mere speculation, as there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In recent decision, the Court noted that “the VA Clinician’s Guide makes explicit what DeLuca [v. Brown, 8 Vet. App. 202 (1995)] clearly implied: it instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves” and that, even when the claimant is not experiencing a flare-up at the time of the examination, a VA examiner must elicit relevant information as to the veteran’s flares or ask him or her to describe the additional functional loss, if any, he or she suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record including the veteran’s lay information or explain why he could not do so. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). Thus, to ensure compliance with the Court’s holding in Sharp, supra, the Veteran should once again be scheduled for new VA examinations to assess the current nature and severity of his service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303 (2007). On remand, the AOJ should associate with the record any outstanding VA treatment records that are not currently associated with the claims file. Records dated through April 17, 2018, are currently of record. Additionally, the Veteran should be given the opportunity to identify any outstanding pertinent records. The matters are REMANDED for the following action: 1. Associate any VA treatment records dated from April 17, 2018, to the present with the Veteran’s claims file. 2. Send the Veteran a letter requesting that he submit, or authorize VA to obtain on his behalf, any additional records of private care he may have in his possession pertaining to the issues on appeal. The AOJ should then attempt to obtain those records if the Veteran provides the appropriate authorization. 3. The Veteran should be scheduled for an appropriate VA examination by a competent medical professional to determine the current nature and severity of his service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner must address each of the following inquiries: a) The examiner should describe all symptoms associated with the Veteran’s service-connected right knee disability, left knee disability, left clavicle fracture, right wrist disability, and lumbar spine disability. b) For each disability, the examiner should conduct range of motion testing (expressed in degrees) in active motion, passive motion, weight-bearing, and nonweight-bearing. If pain is noted on range-of-motion testing, the examiner must specify at what point the Veteran’s loss of range of motion was due to pain and at what point the evidence of pain ended. c) For each disability, the examiner should ask the Veteran to report any range of motion loss during flare-ups or following repeated use. Even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to his flare ups and ask him to describe the additional functional loss, if any, he suffers during flare-ups or following repeated use. For each disability where the examination does not occur during a flare-up, the examiner should estimate the functional loss, including loss of range of motion, due to flare-ups or following repeated use based on all the evidence of record including the Veteran’s lay statements. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 4. Thereafter, and after any further development deemed necessary, the issues on appeal should be reajudicated. If the benefits sought on appeal are not granted, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James R. Springer, Associate Counsel