Citation Nr: 18148239 Decision Date: 11/08/18 Archive Date: 11/07/18 DOCKET NO. 17-16 439 DATE: November 8, 2018 ORDER An initial rating of at least 50 percent for depression disorder is granted. An effective date of October 18, 2013 for the 20 percent rating for right shoulder/acromioclavicular is granted. An effective date of October 18, 2013 for the grant of service connection for depression disorder is granted. An effective date of October 18, 2013 for the grant of service connection for hearing loss is granted. REMANDED Service connection for a back disorder is remanded. Service connection for asthma is remanded. Service connection for sleep apnea is remanded. Service connection for a heart disorder is remanded. Service connection for hypertension is remanded. Service connection for diabetes is remanded. A disability rating higher than 10 percent for limited flexion with arthritis, left knee, previously rated as patellofemoral syndrome, is remanded. A disability rating higher than 20 percent for right shoulder/acromioclavicular joint osteoarthritis is remanded. A disability rating higher than 10 percent for chronic sprain, right wrist is remanded. A disability rating higher than 10 percent for limited painful flexion with arthritis, right knee, is remanded. An initial compensable rating for bilateral hearing loss is remanded. An initial rating higher than 50 percent for depression disorder is remanded. A total disability rating for compensation based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s depression disorder is productive of constant depressed mood, markedly diminished interest or pleasure in almost all activities, feelings of worthlessness, recurring thoughts of death, and suicidal ideation. 2. Prior to August 8, 2014, there was an unadjudicated claim for a higher rating for the service-connected right shoulder disability which was filed on October 18, 2013; and there is no factually ascertainable evidence of an increase in disability in the year prior to the October 18, 2013 claim. 3. Prior to August 8, 2014, there was an unadjudicated claim for service connection for bilateral hearing loss and a psychiatric disorder that was filed on October 18, 2013. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of at least 50 percent for depression disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9435. 2. The criteria for an effective date of October 18, 2013, for the 20 percent rating for right shoulder/acromioclavicular joint osteoarthritis and rotator cuff syndrome are met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400(o)(2). 3. The criteria for an effective date of October 18, 2013, for the grant of service connection for depression disorder are met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400(b)(2). 4. The criteria for an effective date of October 18, 2013, for the grant of service connection for bilateral hearing loss are met. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. §§ 3.102, 3.400(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to November 1972. The case is on appeal from rating decisions issued in October 2012, July 2015, and October 2015. This is a highly complex case: The October 2012 rating decision assigned separate ratings of 10 percent each for right wrist sprain, right shoulder/acromioclavicular joint osteoarthritis and rotator cuff syndrome, and left and right knee patellofemoral syndrome; formerly evaluated as arthralgia - multiple joints, with a rating of zero percent. The effective date of this action was December 23, 2011. The July 2015 rating decision granted service connection for unspecified depression disorder with a rating of 30 percent, and service connection for hearing loss with a zero percent rating; each effective August 8, 2014. It also denied service connection for sleep apnea, diabetes, a heart disorder, hypertension, and asthma; increased the rating for the service-connected right shoulder disability from 10 to 20 percent effective August 8, 2014; confirmed and continued the 10 percent ratings for the service-connected right wrist and bilateral knee disabilities; and denied an award of TDIU. The October 2015 rating decision denied service connection for a low back disorder. The Board notes that the RO also appears to have certified the issue of an earlier effective date for the separately awarded ratings for service-connected right wrist sprain, and left and right knee arthritis. See RO’s July 2017 Certification of Appeal. However, on review of the record the Board observes that the Veteran did not file a notice of disagreement (NOD), and there is no statement of the case, regarding these issues. See Veteran’s July 2015 notice of disagreement (NOD) and accompanying statement, in which the Veteran identified his appeal as stemming from the July 2015 rating decision and specifically requested an effective date of October 2013. As the Veteran already has an effective date of December 23, 2011 for his service-connected right wrist, left knee, and right knee disabilities (see December 2012 rating decision/codesheet), he obviously could not have been referring to these three disabilities in his nebulous request for an earlier effective date of October 2013. The Board therefore does not take jurisdiction over the issues of an earlier effective date for right wrist sprain and left and right knee arthritis, as this would be to the Veteran’s detriment, given the above. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. An initial rating of at least 50 percent for depression disorder In a rating decision dated in July 2015, the RO granted service connection for depression disorder with an assigned rating of 30 percent effective August 8, 2014. The Veteran has appealed the assigned rating, stating that he wants a rating higher than 30 percent. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In his March 2017 substantive appeal (Form 9), the Veteran reported that he has been granted Social Security disability benefits. Unfortunately, those records have not been associated with the claims file, so further development is needed and this matter will be remanded. Notwithstanding the need for further development of this claim, the Board observes that on VA mental disorders examination in June 2015, the diagnosis was unspecified depression disorder that, according to the examiner, was productive of depressed mood, markedly diminished interest or pleasure in almost all activities, feelings of worthlessness, recurrent thoughts of death, and recurrent suicidal ideation; and in correspondence dated in March 2016 the Veteran averred that he was basically confined to his home due to his constant depression, which he described as severe. In consideration of the lay and medical evidence of record thus far, the Board finds that the Board finds that the Veteran’s service-connected psychiatric disability picture more nearly approximates the criteria for a 50 percent rating. 38 C.F.R. § 4.7. This is particularly so when reasonable doubt is resolved in the Veteran’s favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An initial disability rating of at least 50 percent for service-connected depression disorder is therefore warranted. The issue of an initial rating higher than 50 percent for service-connected depression disorder is addressed in the remand section, below. This intermediary grant of benefits will not prejudice the Veteran, as the case will be returned to the Board for consideration of a rating higher than 50 percent after the requested development has been completed, unless the Veteran withdraws his appeal. 2. An effective date of October 18, 2013 for the 20 percent rating for right shoulder/acromioclavicular osteoarthritis In a rating decision dated in July 2015; and increased the rating for the Veteran’s service-connected right shoulder disability from 10 percent to 20 percent effective August 8, 2014. The Veteran is requested an effective date of October 2013, which he insists is the date of claim. See RO’s February 2015 record of contact with the Veteran and his representative, and the Veteran’s March 2016 NOD. The Veteran asserts that VA lost his October 2013 claim/paperwork. VA regulations provide that in claims for increased rating, the effective date of the award shall be the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim. 38 C.F.R. § 3.400(o)(2). In its July 2015 rating decision, the RO averred that the increase in rating from 10 percent to 20 percent for the Veteran’s right shoulder disability stemmed from an August 8, 2014 claim. However, in a memo to file dated in February 2015, the RO acknowledged that the Veteran had submitted a claim in October 2013. See RO’s February 2015 record of contact/“Report of General Information” with the Veteran and his representative. The RO specifically stated: “The veteran did submit copies of claims paperwork sign October 18, 2013.” The RO also acknowledged that there may have been some mishandling of the Veteran’s claims file. Based on this evidence, and according the Veteran all reasonable doubt, the Board finds October 18, 2013 to be the date of the claim for increased rating. 3. An effective date of October 18, 2013 for the grant of service connection for depression disorder 4. An effective date of October 18, 2013 for the grant of service connection for hearing loss In a rating decision dated in July 2015, the RO granted service connection for depressive disorder and bilateral hearing loss with an effective date of August 8, 2014. The Veteran is requested an effective date of October 2013, which he insists is the date of claim. See RO’s February 2015 record of contact with the Veteran and his representative, and the Veteran’s March 2016 NOD. The Veteran asserts that VA lost his October 2013 claim/paperwork. VA regulations provide that the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an original award of direct service connection is the day following separation from active service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, date of receipt of claim, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b); 38 C.F.R. § 3.400 (b)(2)(i). In its July 2015 rating decision, the RO averred that the grant of service connection stemmed from an August 8, 2014 claim; and on review of the record there is no prior unadjudicated claim for service connection until the August 2014 document. However, in a memo to file dated in February 2015, the RO acknowledged that the Veteran had submitted a claim in October 2013. The adjudicator specifically stated: “The veteran did submit copies of claims paperwork sign October 18, 2013.” Again, the RO also acknowledged that there may have been some mishandling of the Veteran’s claims file. Based on this evidence, and according the Veteran all reasonable doubt, the Board finds that an effective date of October 18, 2013 for the grant of service connection for bilateral hearing loss and depression disorder is warranted. REASONS FOR REMAND 1. Service connection for a back disorder is remanded. The Veteran seeks service connection for a low back disorder on a direct basis, or alternatively, as secondary to his service-connected right knee disability. He points out that he received treatment, including physical therapy, for a low back disorder during service. He also avers that his he fell and aggravated his already painful back when his service-connected right knee buckled. STRs confirm that the Veteran suffered a lumbosacral spine strain when diving during service; and medical records dated in December 2014 confirm that the Veteran reported with complaints of extreme low back pain after a fall when his right knee gave away. Additionally, in his March 2017 Form 9 the Veteran reported that he had been granted Social Security disability benefits based on all of his disorders. See also June 2015 VA mental disorders examination report, which documents the Veteran as reporting that he “received his social security disability in December, 2014.” After efforts to obtain the Veteran’s Social Security disability records have been completed, the Veteran should be afforded a VA examination. McLendon v. Nicholson, 20 Vet. App. 79 (2006). 2. Service connection for asthma is remanded. 3. Service connection for sleep apnea is remanded. 4. Service connection for a heart disorder is remanded. 5. Service connection for hypertension is remanded. 6. Service connection for diabetes is remanded. In addition to a low back disorder, the Veteran is also requesting service connection for asthma, sleep apnea, heart disease, hypertension, and diabetes mellitus type II; all of which he maintains is due to his physical inactivity and ensuing weight gain that is in turn due to his service-connected psychiatric disability and multiple joint arthralgia (now severally rated as service-connected right shoulder, right wrist, and bilateral knee disorders). In this regard, the Board notes that a private provider asserts that there is a relationship between the Veteran’s diabetes and weight, and that the Veteran’s weight gain is due to his loss of physical activity; and avers that the Veteran’s diabetes might actually resolve if the Veteran lost weight. See, e.g., private medical records dated in January 2005 and April 2008. See also VA medical records dated in July 2014, which advise “cannot exercise due to pain”; and the April 2015 VA knee examination report, p. 3, which documents the Veteran as stating that his bilateral knee condition, which began during service, has progressively worsened since then and “on the days when my knees are popping I can’t do much walking and sit with my legs up.” After efforts to obtain the Veteran’s Social Security disability records have been completed, the Veteran should be afforded a VA examination. McLendon. 7. A disability rating higher than 10 percent for left knee limited flexion with arthritis is remanded. 8. A disability rating higher than 20 percent for right shoulder/acromioclavicular joint osteoarthritis is remanded. 9. A disability rating higher than 10 percent for chronic right wrist sprain is remanded. 10. A disability rating higher than 10 percent for right knee limited painful flexion with arthritis is remanded. On review of the record, the Board observes that the last VA examination of the right shoulder and right wrist was in May 2012, and the knees were last examined in April 2015. Unfortunately, those examinations did not include passive range of motion measurements, or weight-bearing range of motion measurements, or an estimation of functional loss during flare-ups. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016); and Sharp v. Shulkin, 29 Vet. App. 26 (2017). After efforts to obtain the Veteran’s Social Security disability records have been completed, the Veteran should be afforded a new VA examination. 38 C.F.R. § 3.327. See also Snuffer v. Gober, 10 Vet. App. 400 (1997). 11. An initial compensable rating for bilateral hearing loss is remanded. In a July 2015 rating decision, the RO granted service connection for bilateral hearing loss with a zero percent rating, which the Veteran appealed. In correspondence dated in March 2016 the Veteran maintained that his hearing loss was worse than has been assessed. See also Veteran’s March 2017 Form 9, in which he reported that he has been equipped with hearing aids since the 2015 grant of service connection for hearing loss. In this regard, the Board notes that the Veteran’s last VA audiology examination was in June 2015; prior to the July 2015 rating decision. After efforts to obtain the Veteran’s Social Security disability records have been completed, the Veteran should be afforded a new examination. 12. An initial rating higher than 50 percent for depression disorder is remanded. As for the Veteran’s request for a higher initial rating for his service-connected depression disorder, the Board observes that the only VA examination was for service connection purposes in June 2015, and in correspondence dated in March 2016 the Veteran indicated that his psychiatric disorder has worsened. After efforts to obtain the Veteran’s Social Security disability records have been completed, the Veteran should be afforded a new examination. 13. TDIU is remanded. The issue of TDIU is inextricably intertwined with the increased rating claims and is also remanded. On remand the claims file should be updated to include VA medical records dated after September 2015. The matters are REMANDED for the following action: 1. Update the claims file to include all of the Veteran’s VA medical records dated after September 2015. 2. Request a copy of the Veteran’s Social Security disability records and associate these records with the claims file. If possible, to move the Veteran’s case along faster, the Veteran should attempt to obtain these records himself. 3. Schedule the Veteran for an examination by an appropriate medical professional regarding the claims for service connection for a low back disorder, asthma, sleep apnea, hypertension, heart disease, and diabetes. The claims file must be reviewed in conjunction with this examination. 4. After physical examination, the examiner should provide an opinion, for each claimed disorder found on examination and in medical records, as to whether it is at least as likely as not that the disorder (a.) began during active duty service. In formulating this opinion, the examiner should consider that the Veteran injured his back while diving during service, and was diagnosed during service with lumbosacral spine strain and sprain. Also, and with regard to the claim for hypertension, the examiner should note that the Veteran was diagnosed with hypotension during service. (b.) was caused by the Veteran’s service-connected depression disorder and/or multiple joint arthritis in his knees, right shoulder, and right wrist. In formulating this opinion, the examiner should consider the Veteran’s argument that his sleep apnea, hypertension, heart disease, and diabetes are due to his physical inactivity (and ensuing weight gain), caused by his service-connected psychiatric disability and multiple joint arthritis in his knees, right shoulder, and right wrist. (c.) is aggravated by the Veteran’s service-connected multiple joint arthritis in his knees, right shoulder, and right wrist. In formulating this opinion, the examiner should address the Veteran’s contention that his low back pain, which he says he has had since service, worsened when he fell after his right knee buckled in 2014. A complete explanation or rationale should be provided for all opinions. 5. Schedule the Veteran for a VA examination by an appropriate clinician to ascertain the severity of the Veteran’s service-connected right shoulder, right wrist, and left and right knee disabilities. This should include both active and passive range of motion testing, in both weight-bearing and nonweight-bearing circumstances, with range of motion for each excursion reported in terms of degrees. If there are flare-ups, but if the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. If this cannot be done, it should be explained why this is so. 6. Schedule the Veteran for an appropriate VA examination to ascertain the severity of the Veteran’s service-connected bilateral hearing loss disability. 7. Schedule the Veteran for a VA examination by an appropriate clinician to ascertain the severity of the Veteran’s service-connected psychiatric disability. (Continued on the next page)   8. After completion of the above development, re-adjudicate the issue of TDIU JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Childers, Counsel