Citation Nr: 18150616 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 13-31 612 DATE: November 15, 2018 ORDER An initial rating in excess of 40% for lumbar strain, lumbar myalgia is denied. An effective date prior to June 8, 2012 for service connection for depression is denied. REMANDED The issue of entitlement to an initial rating in excess of 30 percent for depression is remanded. The issue of entitlement to a total rating due to unemployability caused by service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Since service connection became effective August 3, 2009, the appellant’s lumbar strain and lumbar myalgia have been manifested primarily by tenderness to palpation, muscle spasm, guarding, flexion to at least 30 degrees with pain at 20 degrees and a combined range of motion of at least 150 degrees without ankylosis. 2. VA did not receive an informal claim or intent to file a claim or formal claim for service connection for depression prior to June 8, 2012. CONCLUSIONS OF LAW 1. Since service connection became effective August 3, 2009, the criteria for a rating in excess of 40% for lumbar strain and lumbar myalgia have not been met. 38 U.S.C. § 3.155; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5239. 2. The criteria for an effective date prior to June 8, 2012 for service connection for depression have not been met. 38 U.S.C. § 5110(a)-(b)(1); 38 C.F.R. § 3.400(b)(2). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Navy from October 1984 through September 1996. This case has been before the Board of Veterans' Appeals (Board) on several occasions, the last time in December 2017. Each time, it was remanded for further development. Following the requested development, the Agency of Original Jurisdiction (AOJ) confirmed and continued the initial 40 percent rating lumbar strain with myalgia and the 30 percent rating for depression. The AOJ also denied entitlement to a TDIU and a rating prior to June 8, 2012 for service connection for depression. Thereafter, the case was returned to the Board for further appellate action. The Increased Rating Claim The appellant seeks a rating in excess of 40 percent for lumbar strain and lumbar myalgia since service connection became effective August 3,2009. Disability evaluations are determined by comparing the manifestations of a particular disability with the criteria set forth in the Diagnostic Codes of the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity (in civilian occupations) resulting from service-connected disability. 38 C.F.R. § 4.1. The appellant’s service-connected low back disability is rated in accordance with the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5239. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is accomplished to 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, are to be evaluated under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5. In evaluating any disability on the basis of limitation of motion, consideration is given to the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion and on flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). 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. During the course of an appeal, a veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Similarly, when service connection is granted and an initial rating award is at issue, separate ratings can be assigned for separate periods from the time service connection became effective. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, the following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. VA and private treatment records, dated since service connection became effective August 3, 2009, and the reports of VA examinations in January 2010 and October 2016 show that appellant’s lumbar spine disability has been manifested primarily by tenderness to palpation, muscle spasm, guarding, flexion to at least 30 degrees with pain at 20 degrees and a combined range of motion of at least 150 degrees with pain throughout extension, lateral flexion, bilaterally; and rotation, bilaterally. Such findings are contemplated by appellant’s current 40 percent evaluation, and there is no indication of any associated neurologic abnormalities. 38 C.F.R. § 4.71a, Diagnostic Code 5235. In order to obtain a higher rating, the appellant would have to demonstrate ankylosis. To date, however, he has not done so. Indeed, during the appellant’s October 2016 VA examination, the examiner indicated, specifically, that ankylosis was not present. Absent evidence of ankylosis, the appellant does not meet or more nearly approximate the schedular criteria for a rating in excess of 40 percent. The Effective Date Claim The appellant seeks entitlement to an effective date prior to June 8, 2012, for a grant of service connection for depression. Generally, the effective date of an award of service connection shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the VA from a veteran, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a veteran who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.155(b). Upon receipt of an intent to file a claim, if a formal claim has not been filed, an application form will be forwarded to a veteran for execution. If received within one year from the date it was sent to a veteran, it will be considered filed as of the date of receipt of the intent to file claim. Id. In this case, the appellant’s initial claim of entitlement to service connection for a depression was not received by VA until June 8, 2012, many years after the appellant’s separation from service. VA received no communication prior to that date, which could be reasonably construed as an intent to file a claim for service connection for depression. Even if depression was first manifested prior to June 8, 2012, the date of the receipt of the claim controls, as it occurred later than the date entitlement arose. Thus, there is simply no legal basis for an effective date prior to June 8, 2012, for a grant of service connection for depression. The law is dispositive of the issue; and, therefore, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). REASONS FOR REMAND The appellant seeks an initial rating in excess of 30 percent for depression. A review of the evidence shows that he received VA psychiatric treatment through January 2016 and that he was examined by VA in January 2013 and October 2016 to determine, in part, the severity of that disability. In July 2018, VA received evidence from the appellant’s father; A. F., Ph.D.; H.H.-G., Ph.D. It appears that the evidence from A. F., Ph.D. constitutes a portion of a larger statement. In addition, there is a significant disparity in the findings and conclusions between the evidence from VA and that received in July 2018. Given that disparity, additional development of the increased rating issue is warranted. The appellant also seeks a TDIU. That issue is inextricably intertwined with the issue of entitlement to an increased rating for the appellant’s depression. Accordingly, it will be held in abeyance pending resolution of the increased rating claim. Holland v. Brown, 6 Vet. App. 443 (1994). In light of the foregoing, the noted issues are remanded to the Agency of Original Jurisdiction (AOJ) for the following action: 1. Ask the appellant for the names and addresses of all health care providers (VA and non-VA) who have provided him with psychiatric treatment since January 2016. Then, ask those health care providers for copies of those records. 2. Ask A. F., Ph.D. for a complete copy of his statement received at VA in July 2018. 3. When the actions in parts 1 and 2 have been completed, schedule the appellant for an examination by an appropriate clinician to determine the current severity of his service-connected psychiatric disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the appellant’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his/her service-connected depression alone. The examiner must address the additional evidence submitted by the appellant in July 2018. The appellant is advised that it is his responsibility to report for all scheduled VA examinations and to cooperate in the development of his claims. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. § 3.655. 4. Ensure that the VA examination report is adequate and substantially complied with the Board directives. (Continued on the next page)   5. Readjudicate the issue of entitlement to an increased rating for depression and entitlement to TDIU. C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Harold A. Beach, Counsel