Citation Nr: 18148288 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-20 687 DATE: November 7, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for major depressive disorder with generalized anxiety disorder and alcohol dependence is denied. Entitlement to an initial rating in excess of 10 percent for a right knee disability is denied. Entitlement to an initial rating in excess of 10 percent for a right fifth finger disability is denied. Entitlement to an initial compensable rating for hypertension is denied. Entitlement to an initial compensable rating for right knee and right thigh scars is denied. Entitlement to an initial compensable rating for dermatitis is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for a left underarm scar is remanded. Entitlement to service connection for temporomandibular joint (TMJ) disorder is remanded. FINDINGS OF FACT 1. The Veteran’s major depressive disorder with generalized anxiety disorder and alcohol dependence has not produced at least occupational and social impairment with deficiencies in most areas. 2. Even in consideration of his complaints of pain, pain on motion, and functional loss, the Veteran’s right knee disability has not resulted in limitation of flexion to 30 degrees or limitation of extension to 15 degrees. There is no objective medical evidence of moderate or severe recurrent subluxation or lateral instability of the right knee. 3. The Veteran’s right fifth finger disability has not produced at least moderate incomplete paralysis. 4. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. 5. The Veteran’s scars do not affect the head, face, or neck, are not associated with underlying soft tissue damage, do not measure an area of 144 square inches or greater, are not unstable or painful, and do not produce any disabling effect. 6. The Veteran’s dermatitis has not affected at least five percent of the entire body or exposed areas or required systemic therapy. 7. The Veteran’s service-connected disabilities have produced total occupational impairment. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 50 percent for major depressive disorder with generalized anxiety disorder and alcohol dependence have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9413 (2018). 2. The criteria for an initial rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5257, 5260, 5261. 3. The criteria for an initial rating in excess of 10 percent for a right fifth finger disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8716. 4. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. 5. The criteria for an initial compensable rating for right knee and right thigh scars have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. 6. The criteria for an initial compensable rating for dermatitis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7806. 7. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder with generalized anxiety disorder and alcohol dependence. The Veteran’s major depressive disorder with generalized anxiety disorder and alcohol dependence is rated under Diagnostic Code 9413. Under that code, a 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 or place; memory loss for names of close relatives, own occupation or own name. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. The Veteran is not entitled to an initial rating in excess of 50 percent for his psychiatric disability. The record, including the December 2012, October 2014, and April 2016 VA examinations, contains evidence of depressed mood and difficulty in adapting to stressful circumstances. However, the Veteran has not displayed symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; impaired speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; or an inability to establish and maintain effective relationships. The Board certainly understands that the presence, or absence, of certain symptoms is not necessarily determinative. These symptoms must also cause the occupational and social impairment in the referenced areas. In this regard, the totality of the evidence fails to show that the symptoms of the Veteran psychiatric disability produce occupational and social impairment with deficiencies in most areas. Despite reporting feelings of depression and anxiety, the Veteran has maintained regular contact with family members. He has been separated from his wife and child, but such separation predates the appeal period by several years. Although he is unemployed, he has not reported difficulty obtaining employment due to his psychiatric disability. The Veteran’s thinking and judgment have been intact throughout the appeal period. Further, none of the VA examiners found social and occupational impairment with deficiencies in most areas. Neither is the Veteran entitled to a 100 percent rating at any time during the appeal period. The Veteran has not had total social impairment. As previously stated, the Veteran has maintained regular contact with family members. At times, he has also reported friendships with others. The absence of total social impairment precludes the possibility of a 100 percent rating. The Board acknowledges the Veteran’s assertion that he is entitled to an increased rating and his competent and credible lay statements describing his symptomology. Nevertheless, even considering these statements, the weight of the medical and lay evidence simply does not show occupational and social impairment with deficiencies in most areas or total social impairment. Moreover, the Board notes that with respect to the Rating Schedule, the criteria set forth therein generally require medical expertise which the Veteran has not been shown to have. 2. Entitlement to an initial rating in excess of 10 percent for a right knee disability. The Veteran’s right knee disability is rated under Diagnostic Code 5260 for limitation of flexion. He is also in receipt of a separate 10 percent rating for right knee instability under Diagnostic Code 5257. Diagnostic Code 5003 addresses degenerative arthritis. Under that code, degenerative arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic code(s), an evaluation of 10 percent is applied for each major joint or group of minor joints affected by limitation of motion. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations warrants a 20 percent evaluation. X-ray evidence of involvement of two or more major joints or two or more minor joints warrants a 10 percent evaluation. Diagnostic Code 5257 addresses other impairment of the knee. A 30 percent rating requires severe recurrent subluxation or lateral instability. A 20 percent rating requires moderate recurrent subluxation or lateral instability. Words such as “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Use of terminology such as “severe” by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5260 addresses limitation of flexion of the leg. Under that code, a 30 percent rating requires flexion limited to 15 degrees. A 20 percent rating requires flexion limited to 30 degrees. Diagnostic Code 5261 addresses limitation of extension of the leg. Under that code, a 50 percent rating requires extension limited to 45 degrees. A 40 percent rating requires extension limited to 30 degrees. A 30 percent rating requires extension limited to 20 degrees. A 20 percent rating requires extension limited to 15 degrees. VA’s General Counsel has provided guidance concerning increased rating claims for knee disabilities. In VAOPGCPREC 23-97, 62 Fed. Reg. 63,604 (1997), it was held that a veteran who has arthritis and instability of the knee might be rated separately under Diagnostic Codes 5003 and 5257, provided that any separate rating must be based upon additional disability. When a knee disorder is already rated under Diagnostic Code 5257, the veteran must also have limitation of motion under Diagnostic Code 5260 or Diagnostic Code 5261 in order to obtain a separate rating for arthritis. In VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998), the VA General Counsel clarified that when a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on X-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. A separate rating for arthritis could also be based on X-ray findings and painful motion under 38 C.F.R. § 4.59. The Veteran is not entitled to a rating in excess of 10 percent for his right knee disability. The evidence of record, including the January 2013, October 2014, and May 2015 VA examination reports, fails to show flexion limited to 30 degrees or less or extension limited to 15 degrees or more. The examinations showed extension was normal (zero degrees) and, at its worse, flexion was limited to 90 degrees. Such would not warrant the assignment of even compensable ratings under Diagnostic Codes 5260 and 5261. The record also shows that the Veteran’s complaints of pain, pain on motion, and functional loss were considered in assessing the right knee. Consideration has been given as to whether the Veteran’s knee disability would warrant a higher rating under any other relevant diagnostic code. There is no evidence of ankylosis or impairment of the tibia and fibula at any time during the appeal period, thereby precluding a higher rating under Diagnostic Codes 5256 or 5262. The Board has also considered whether a separate rating for arthritis may be warranted. Because the Veteran is already in receipt of a 10 percent rating for right knee instability, a separate rating for arthritis requires limited motion meeting the criteria for a noncompensable rating or X-ray findings of arthritis with painful motion. The Veteran’s limitation of flexion and extension do not meet the criteria for at least a noncompensable rating under Diagnostic Codes 5260 and 5261. His 10 percent rating for a right knee disability has been assigned based on his reports of painful motion. A separate rating for arthritis based on painful motion therefore cannot be granted as such would constitute unlawful pyramiding. The Board acknowledges the competent and credible lay reports of right knee instability. However, the VA examination reports indicate no instability or subluxation. The DBQs were completed by medical professionals who formulated those conclusions based on a physical examination, review of the record, and interview of the Veteran. The Board has no basis to contradict the conclusions made by the examiners. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The medical evidence outweighs the lay evidence of instability. Therefore, a rating in excess of 10 percent for right knee instability is also not warranted. 3. Entitlement to an initial rating in excess of 10 percent for a right fifth finger disability. The Veteran’s right fifth finger disability is rated under Diagnostic Code 8716. Under that code, a 60 percent rating for the major side requires complete paralysis. A 40 percent rating for the major side requires severe incomplete paralysis. A 30 percent rating for the major side requires moderate incomplete paralysis. The Veteran is not entitled to an initial rating in excess of 10 percent for his right fifth finger disability. The January 2013 and October 2014 VA examination reports indicate no worse than mild numbness of the finger with no functional impact. Such does not approximate moderate incomplete paralysis required for a higher rating. The Board has considered whether the Veteran’s disability would warrant a higher rating under any other relevant diagnostic code and found that none are applicable. 4. Entitlement to an initial compensable rating for hypertension. The Veteran’s hypertension is rated under Diagnostic Code 7101. Under that code, a 60 percent rating requires diastolic pressure predominantly 130 or more. A 40 percent rating requires diastolic pressure predominantly 120 or more. A 20 percent rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 10 percent rating requires diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; use of continuous medication required for control with a history of diastolic pressure predominantly 100 or more. Although the Veteran’s hypertension has been controlled with medication, he has not had systolic pressure predominantly 160 or more, diastolic pressure predominantly 100 or more, or a history of diastolic pressure predominantly 100 or more. At the January 2013 VA examination, his blood pressure readings were 120/82, 118/80, and 122/82. At the October 2014 VA examination, his blood pressure readings were 152/100, 148/102, and 150/100. Subsequent blood pressure readings in the medical treatment records show that the Veteran’s systolic blood pressure was predominantly less than 100. As such, although the October 2014 systolic blood pressure readings were 100 or more, the weight of the evidence indicates that the Veteran’s systolic blood pressure has been predominantly less than 100. Therefore, the Veteran is not entitled to an initial rating in excess of 10 percent for hypertension. The Board has considered whether the Veteran’s disability would warrant a higher rating under any other relevant diagnostic code and found that none are applicable. 5. Entitlement to an initial compensable rating for right knee and right thigh scars. The Veteran’s scars are rated under Diagnostic Code 7805 for other scars. The January 2013 VA examination report notes scars of the right knee and right calf. The scars are not unstable or painful, are not associated with any underlying soft tissue damage, and measure less than 144 square inches. As the Veteran’s scars do not affect the head, face, or neck, are not associated with underlying soft tissue damage, do not measure at least 144 square inches, are not unstable or painful, and do not have any functional impact, there is no basis for a compensable rating under any diagnostic code for scars or otherwise. An initial compensable rating must be denied. 6. Entitlement to an initial compensable rating for dermatitis. The Veteran’s dermatitis is rated under Diagnostic Code 7806. A 60 percent rating requires characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past 12-month period. A 30 percent rating requires characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 10 percent rating requires characteristic lesions involving at least 5 percent, but less than 20 percent, of the entire body affected; at least 5 percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period. The Veteran is not entitled to an initial compensable rating for dermatitis. The January 2013 and October 2014 VA examination reports note dermatitis of the face and left foot with use of topical cream. The dermatitis affects less than 5 percent of exposed or total body area with no noted functional impact. Because less than 5 percent of exposed or total body area is affected and systemic therapy is not required, a compensable rating is not warranted. 7. Entitlement to TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Indeed, the focus of the examiner is not on whether a Veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities. The Veteran is service connected for major depressive disorder with generalized anxiety disorder and alcohol dependence rated 50 percent disabling; a right knee disability rated 10 percent disabling; a right fifth finger disability rated 10 percent disabling; right knee instability rated 10 percent disabling; a left knee disability rated 10 percent disabling; noncompensable hypertension; noncompensable right eyebrow and neck scars; noncompensable right knee and thigh scars; and noncompensable dermatitis. His combined rating is 70 percent. The Veteran meets the schedular TDIU and criteria for eligibility under 38 C.F.R. § 4.16(a). The Veteran contends that he has been unable to obtain and maintain substantially gainful employment due to his service-connected psychiatric and bilateral knee disabilities. He has a high school education. See February 2014 VA 21-8940. He performed engineering work in service but has not been employed since separation. He claims that he stopped working due to disability. Granting him the benefit of the doubt, the Board finds that the Veteran is entitled to TDIU. The Veteran’s psychiatric disorder causes symptoms of depressed mood, anxiety, panic attacks, chronic sleep impairment, and difficulty in adapting to stressful circumstances. He has been found to have occupational impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. His knee disabilities cause pain, disturbance of locomotion, and limited movement. His right fifth finger disability also causes some numbness and pain. Taken together, his physical and mental limitations would likely preclude him from any form of substantially gainful employment consistent with his limited education and employment history. Accordingly, TDIU is warranted. REASONS FOR REMAND 8. Entitlement to service connection for a left underarm scar and TMJ disorder is remanded. The Veteran underwent VA examinations for, and was diagnosed with, a left underarm scar and a hairline fracture of the left body of the mandible in January 2013 and October 2014 respectively. Although the Veteran asserts that his disabilities are related to service, the VA examiners did not provide opinions addressing service connection. As such, opinions should be obtained addressing service connection for the left underarm scar and hairline fracture. The matter is REMANDED for the following action: 1. Return the file to the examiners who completed the January 2013 scar examination and October 2014 TMJ examination. If either examiner is not available, return the file to another examiner with the appropriate knowledge and expertise. The examiner must acknowledge review of the pertinent evidence of record, including the Veteran’s reports of symptom manifestation. All necessary examinations, tests, and studies should be conducted. The examiners should address the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s left underarm scar had its onset in service or is otherwise etiologically related to active service? b. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s hairline fracture of the left body of the mandible had its onset in service or is otherwise etiologically related to active service? Rationale for the requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. 2. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If the benefits sought are not granted, the Veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. K. A. KENNERLY Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel