Citation Nr: 18147584 Decision Date: 11/05/18 Archive Date: 11/05/18 DOCKET NO. 16-40 444 DATE: November 5, 2018 ORDER Entitlement to service connection a lumbar spine disability, to include degenerative joint disease, and degenerative disc disease is granted. Entitlement to a disability rating in excess of 70 percent for generalized anxiety disorder with depressive disorder is denied. Entitlement to service connection for a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s current lumbar spine disability was incurred during or caused by his active military service. 2. The Veteran’s generalized anxiety disorder with depressive disorder manifests, at worst, with occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood; total occupational and social impairment is not shown. 3. The combined effects of the Veteran’s service-connected disabilities prevent him from obtaining or following substantially gainful employment TDIU. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability, to include degenerative joint disease and degenerative disc disease have been met. 38 U.S.C. §§ 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 2. The criteria for an initial disability rating in excess of 70 percent for generalized anxiety disorder with depressive disorder have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1-4.14, 4.130, Diagnostic Code 9434 (2017). 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Navy from September 1976 to October 1980. Board decisions must be based on the entire record, with consideration of all the evidence. 38 U.S.C. § 7104. The law requires only that the Board address its reasons for rejecting evidence favorable to the veteran. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. While the Veteran is competent to report (1) symptoms observable to a layperson; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Because there is no universal rule as to competence, the Board must determine on a case-by-case basis whether a particular condition is the type of condition that is within the competence of a lay person to provide an opinion as to etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Contemporaneous records can be more probative than history as reported by a veteran. See Curry v. Brown, 7 Vet. App. 59, 68 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). SERVICE CONNECTION Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection a lumbar spine disability, to include degenerative joint disease and degenerative disc disease is granted. The Veteran claims entitlement to service connection for a lumbar spine disability. Specifically, the Veteran contends that he began having lower back during his active duty service in 1976. The Veteran further contends that his back pain continued intermittently following his discharge from active duty until the present. The Board acknowledges that the Veteran as a current disability. In an August 2015 VA thoracolumbar examination, the Veteran was diagnosed with a lumbar spine disability with degenerative joint disease and degenerative disc disease. The Board further acknowledges that the Veteran’s service treatment records (STRs) note he complained of and was treated for lower back pain in June 1977 and September 1978, during his active service. In January 2015, the Veteran submitted medical opinions from two private treatment providers indicating that his current lumbar spine disability was as likely as not incurred during his active service. The private medical opinions state: (1) I have reviewed the Veteran’s service medical records and it is my opinion that condition is related to his military service; and (2) One cannot say exactly how long this condition existed prior to this date of diagnosis or definitively state its cause. However, it is as likely as not, that [the Veteran’s] ongoing in-service back pain marks the onset or contributes to his current back condition. The two private medical opinions were authored following review of the Veteran’s service treatment records and providing medical treatment to the Veteran. The Board finds that these medical opinions are competent and credible evidence of service connection. Conversely, in August 2015, following a VA thoracolumbar spine examination, the VA examiner stated: Even though [the Veteran’s private treatment providers state] that it is [as] likely than not that the [V]eteran’s lower back condition has the onset in the military service or military activities contributed to the current condition, the service treatment records on 6/13/77 of complaints of 3 weeks lower back pain, diagnosis: muscular skeletal back pain, treatment with Norgesic, and reduced physical activity. No complaint of lower back pain [again] until 9/28/1978; a complaint of lower back pain for 1 day, provider’s impression was lower back pain, treated with heat. A lack of medical evidences to support the chronicity of lower back condition in service treatment records and after military separation until 2011 makes the claimed lower back condition less likely than not incurred in or caused by specific in-service illness, event, or injury that occurred while on active duty. The Board finds that the above VA examiner’s opinion appears to be based entirely on the lack of documented complaints of lumbar spine pain following service. The examiner failed to consider the Veteran’s contentions that his current lumbar spine pain has continued intermittently since his active service. The examiner also failed to provide any possible etiology for the Veteran’s current lumbar spine disability. The Board may not deny a claim solely based on an opinion which rests on such reasoning. The Board finds that the August 2015 examiner’s opinion is of no probative value. Based on the evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds the preponderance of the evidence is in favor of the Veteran’s claim for service connection. Entitlement to service connection for a lumbar spine disability to include degenerative joint disease and degenerative disc disease is granted. INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a disability rating in excess of 70 percent for generalized anxiety disorder with depressive disorder The Veteran claims entitlement to an initial disability rating in excess of 70 percent for generalized anxiety disorder with depressive disorder. In a September 2015 rating decision, in pertinent part, the Veteran was granted service connection and assigned an initial 70 percent disability evaluation for generalized anxiety disorder with depressive disorder, effective January 16, 2015. The Veteran’s generalized anxiety disorder with depressive disorder is evaluated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434 and the General Rating Formula for Mental Disorders (General Rating Formula). In accordance with Diagnostic Code 9434, a 70 percent rating will be assigned for 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 assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability 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. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA shall assign a rating 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. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Symptoms listed in the General Rating Formula for Mental Disorders 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran’s generalized anxiety disorder was evaluated in VA mental disorder examinations conducted in September 2015 and May 2016. In the September 2015 VA mental disorder examination, the Veteran was diagnosed with depressive disorder. The VA examiner noted that the Veteran’s depressive disorder manifested in occupational and social impairment with occasional decreases occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The VA examiner noted symptoms of depressed mood, near continuous panic or depression, chronic sleep impairment, disturbances of mood or motivation, difficulty in establishing and maintaining effective work and social relationships, and flat affect with poor range. The examiner further noted that the Veteran His judgment, thought content, insight and thought processing were intact. The Veteran did not report suicidal or homicidal ideation, or hospitalizations to treat mental disorder. In the May 2016 mental disorders examination, the Veteran was diagnosed with generalized anxiety disorder with depressive disorder. The VA examiner noted that the Veteran’s depressive disorder manifested in occupational and social impairment with occasional decreases occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The VA examiner further noted that the Veteran’s generalized anxiety disorder and depressive disorder manifested in depressed mood, anxiety, mild memory loss, disturbances of mood or motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work-like setting, and neglect of personal appearance and hygiene. Finally, in discussing the Veteran’s behavior, the VA May 2016 examiner noted that the Veteran was free of psychotic symptoms, had an anxious mood, full range affect, average cognitive aptitude, adequate attention and concentration. The Veteran did have difficulty recalling dates and sequences of events. The Veteran denied any suicidal or homicidal ideation. Based on the above discussed evaluations, the Board finds that Veteran’s generalized anxiety disorder does not meet the criteria for a 100 percent disability rating because the record does not contain the probative evidence necessary to establish total occupational and social impairment; due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Rather, the probative evidence of records indicates that Veteran demonstrated occupational capability by holding full-time employment with the United States Post Office until January 2016. Further, the Veteran’s mental health disorder is addressed in numerous private mental health evaluations from January 2015 to June 2016. In each evaluation, the Veteran denied suicidal or homicidal ideation, denied delusions and paranoia, and denies hallucinations. The Veteran’s treatment records are silent for hospitalizations required to treat mental disorders. In reaching the above conclusions, the Board considered the Veteran’s statements, regarding the severity of his service-connected generalized anxiety disorder symptoms. In this regard, the Veteran and his caregiver are competent to report on factual matters of which they first-hand knowledge, e.g., experiencing an increased level of generalized anxiety disorder symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Their statements are also credible. However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran’s impairment. As is true with any piece of evidence, the credibility and weight to be attached to these opinions are within the province of the Board as adjudicator. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board finds the above-discussed VA mental health assessments to be of significantly higher probative value. Entitlement to an initial disability rating in excess of 70 percent for generalized anxiety disorder with depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) The Veteran claims entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, 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. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the present case, the Veteran is service-connected for generalized anxiety disorder with depressive disorder, and assigned a 70 percent disability rating, effective January 2015. Accordingly, the Veteran meets the schedular criteria for TDIU. The Board notes that the Veteran’s application for TDIU, submitted in February 2016, states that the Veteran completed his last full-time, gainful employment January 29, 2016. Accordingly, the earliest possible date the Veteran is eligible for TDIU is January 29, 2016. In an April 2016 VA mental disorders examination, the VA examiner noted that the Veteran’s generalized anxiety disorder and depressive disorder manifested in depressed mood, anxiety, mild memory loss, disturbances of mood or motivation, difficulty adapting to stressful circumstances, including work or a work-like setting, and neglect of personal appearance and hygiene. Further, the VA examiner stated: Veteran's difficulty performing at work and his recent retirement are attributable primarily to his reported back pain and only secondarily to his worry/irritability/depressive symptoms caused by his back pain. Veteran reportedly has difficulty standing, sitting, or walking and is easily fatigued due to back pain. Veteran reports that his sleep was impaired in the past due to back pain. He currently is able to sleep with several medications but feels lethargic and has trouble getting up the next morning. If [the Veteran] were employed, this nighttime medication might need to be reduced, causing more restless sleep but increased ability to get up in the morning. If employed, it is likely that veteran would have trouble working more than a few hours at a time and would need breaks and the ability to lie down or change position. Veteran has trouble working with others due to anxiety and irritability attributable to his back pain. Veteran would work best isolated from others and at his own pace. As a result of this decision, the Veteran’s back pain, claimed as lumbar spine disability with degenerative joint disease and degenerative disc disease, has been service-connected. Based on the above discussed evidence, the Board finds that the combined effect of the Veteran’s service-connected lumbar spine disability and generalized anxiety disorder with depressive disorder prevent him from obtaining or following substantially gainful employment. Accordingly, entitlement to a TDIU is warranted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Riordan, Associate Counsel