Citation Nr: 18152427 Decision Date: 11/21/18 Archive Date: 11/21/18 DOCKET NO. 17-23 065 DATE: November 21, 2018 ORDER New and material evidence having been has submitted, the claim for entitlement to service connection for a back disorder is reopened. Service connection for a back disorder is granted. An initial disability rating of 70 percent for unspecified depressive disorder prior to October 24, 2017, is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In an unappealed July 2008 rating decision, which became final, the Veteran’s claim for service connection for a back disorder was denied; applications to reopen the claim for service connection for a back disorder were again denied in October 2009 and February 2010 rating decisions, which also became final; subsequently, April 2011 and April 2012 rating decisions also denied the claim, but new and material evidence under 38 C.F.R. § 3.156(b) was submitted within one year following each of these decisions, rendering the denials non-final; as the AOJ never issued a decision directly responsive to that new evidence submitted, the April 2011 and 2012 rating decisions remained open, despite the fact claim for service connection for a back disorder was reopened and denied on the merits in a September 2013 rating decision. 2. Evidence submitted since the last final February 2010 rating decision is not cumulative or redundant and, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim for service connection for a back disorder. 3. Resolving doubt in the Veteran’s favor, her back disorder has been caused or aggravated by her service-connected foot disabilities. 4. Throughout the appellate period, the Veteran’s unspecified depressive disorder symptoms more nearly approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood. 5. Resolving doubt in the Veteran’s favor, her service-connected disabilities, including her feet and psychiatric disabilities, prevent her from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim for service for a back disorder. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 2. The criteria for secondary service connection for a back disorder are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a). 3. The criteria for an initial disability rating of 70 percent for unspecified depressive disorder prior to October 25, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. §4.130, General Rating Formula for Mental Disorders. 4. The criteria for entitlement to TDIU on a schedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1969 to October 1971. As an initial introductory matter, in May 2017, the Veteran requested that her representation with a Veterans Service Organization (VSO) be revoked, expressing her desire to represent herself. Additionally, with respect to the claim for an increased rating for unspecified depressive disorder, the Board acknowledges that the Agency of Original Jurisdiction (AOJ) assigned an initial 30 percent disability rating. Thereafter, while on appeal, the AOJ assigned a higher, 70 percent rating for her psychiatric disability, effective October 25, 2017, which is still less than the maximum rating possible. However, because the Veteran expressly stated in her April 2017 standardized notice of disagreement that she was seeking either a 70 percent evaluation with TDIU or a 100 percent disability rating, she has limited the scope of her appeal. As will be explained in more detail below, the Board deems that TDIU and a 70 percent rating for depression are warranted throughout, which constitutes grant of the expressed benefits sought by her; the issue of whether she may be entitled to disability rating higher than 70 percent for depression is not in controversy and will not be further addressed.   Service Connection 1. New and material evidence having been has submitted, the claim for entitlement to service connection for a back disorder is reopened. In an unappealed July 2008 rating decision, which became final, the Veteran’s claim for service connection for a back disorder was initially denied by the AOJ. Applications to reopen the claim for service connection for a back disorder were again denied in October 2009 and February 2010 rating decisions, which also became final. April 2011 and April rating decisions also denied the claim, but new and material evidence under 38 C.F.R. § 3.156(b) was submitted within one year following each of these decisions, rendering the denials non-final. Notwithstanding the fact that the AOJ reopened and denied on the merits in September 2013, the previous April 2011 and April 2012 rating decisions never became final as a result of the subsequent adjudication because the AOJ had not acted upon the new evidence submitted previously. As a result, the last final denial in this case was the February 2010 rating decision. The evidence submitted after February 2010, including private and VA medical opinions, relates to an unestablished fact necessary to substantiate this service connection claim. Therefore, the Board finds that the claim for service connection for a back disorder should be reopened. 2. Entitlement to service connection for a back disorder is granted. The Veteran alleges that her back disorder is directly related to her service-connected bilateral calluses and flatfeet with metatarsalgia and hallux valgus, status post bunionectomies. See July 2009 statement. Secondary service connection is warranted for a disorder that is proximately due to, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. As an initial matter, the Board acknowledges that the Veteran has been diagnosed with degenerative disc disease (January 2008 private treatment report), as well as degenerative changes (August 2013 VA examination report) and lower back strain with spondylolisthesis (January 2008 VA examination report). Accordingly, a current back disability is shown. In ascertaining whether there is a link between the diagnosed disorders of the back and the service-connected feet disabilities, the Board notes that several VA examiners provided negative nexus opinions for the causational aspect of secondary service connection. See January 2008, December 2009, April 2012, examination, and August 2013 VA examinations. However, of the opinions that addressed whether the feet disabilities aggravated her back disorder, there was no consensus by VA. See April 2012 VA examination (“The foot condition can alter the gait but would not lead to the formation of or aggravation of the lumbar spine condition”); August 2013 VA examination (“Medical research has documented a correlation between moderate to severe pes planus (flat feet) and other foot problems with intermittent complaints of low back pain . . . [which] was also confirmed by this Veteran’s civilian PCP and podiatrist, and also by the consulting VA neurosurgeon. This means that the Veteran’s foot condition MAY have caused an antalgic gait which MIGHT have AGGRAVATED her existing low back pain.”). Rather, the Board finds most probative the plethora of positive opinions provided by the Veteran’s treating providers, which provide the following statements in support of causation or, at the very least, aggravation of a back disorder beyond its natural progression: “After examination of her feet and overall posture[,] it is more likely than not that her poor feet alignment and stability are contributing to her chronic lower back pain and possibly causing more frequent and more severe flare ups” (July 2008 opinion by Dr. G.); “Most of [her problems with her back and her legs] comes from her feet where she was diagnosed with Morton’s neuroma and chronic calluses, which affects her gait.” (July 2007 private treatment report); “Due to the painful nature of the [foot] lesions, her gait has been affected. This has caused undue stress on her back. While I cannot comment on the nature of her back problem, unnatural gait patterns have been known to exacerbate back problems, and it appears that this is happening in this case.” (August 2011 opinion by Dr. W.); “Because of the patient’s difficulty with her painful feet, I believe this has affected her gait, which in turn has been known to aggravate her back problems.” (May 2012 opinion by Dr. M.); “With the problems with her feet, she began to hunch over and damaged both L4 and L5 of her back.” (August 2014 private treatment report by Dr. H.); and “There is a strong likelihood that some element of her back pain has resulted from her feet issues because of the necessity of an altered gate. For this reason, it is just as likely as not that [her] service-connected bilateral foot condition has contributed to, or aggravated, her back problem.” (June 2015 opinion by Dr. M.). These positive opinions for aggravation are also consistent with a VA neurosurgery note, stating “I did not think [her foot condition caused her degenerative arthritis of her spine] although if she was walking for years with an antalgic gait compensating for chronic foot pain[,] it can cause axial back pain,” and are sufficient to establish a link between her service-connected disabilities and her current back disorder. Given the favorable nexus evidence of record, the Board resolves doubt in the Veteran’s favor and finds that the evidence is at least in equipoise to support the establishment of service connection for a back disorder on a secondary basis. 3. An initial disability rating of 70 percent for unspecified depressive disorder prior to October 24, 2017, is granted. The Veteran was initially rated as 30 percent disabling for her unspecified depressive disorder, which the AOJ increased to 70 percent effective October 25, 2017. After carefully reviewing the evidence of record, the Board finds that a 70 percent rating is warranted for her psychiatric disability throughout the entire timeframe on appeal. Under the applicable rating criteria for mental disorders, a 70 percent rating is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting 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. 38 C.F.R. § 4.130. The maximum rating of 100 percent is warranted for total occupational and social impairment due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly 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; and memory loss for names of close relatives, own occupation, or own name. Id. The AOJ awarded a 70 percent rating effective October 25, 2017, the date of a VA examination in which the examiner checked the box for “[o]ccupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood.” After carefully reviewing the nature of the Veteran’s symptoms and assessing their frequency and severity, the Board finds that the criteria for a 70 percent rating have been met throughout the appeal period. Of particular significance, the Board looks to evidence of symptoms demonstrated to prior October 2017 that support a higher rating. For instance, in a July 2014 psychiatric examination, the following impairment was noted: Her recent memory is moderately impaired. Her working memory is 40% impaired. Anger, sadness, and fear come upon her without her understanding why 60% of the time, which indicates her prefrontal cortex is dysfunctional. She feels depressed much of the time with low energy and little interest in things. . . . Because of her service-connected [depression, the Veteran] is moderately compromised in her ability to sustain social relationship and she is also unable to sustain work relationships. Therefore, I consider her permanently and totally disabled and unemployable.” Therefore, it cannot be said that the evidence suggests a worsening of symptoms occurring on the date of the October 2017 examination, or any other particular time during the appeal period, so as to warrant staged initial ratings. Despite the less favorable conclusions rendered during the initial January 2017 VA examination report, which the AOJ used to support an initial 30 percent rating, it instead appears that there was a difference of opinion as to overall impairment by the two VA examiners. Thus, when the Board considers all the evidence together with the impairment discussed in the July 2014 private examination report, the above evidence ultimately suggests a disability more nearly approximating occupational and social impairment equal to that of a 70 percent rating for unspecified depressive disorder throughout the period on appeal. 4. Entitlement to TDIU is granted. As discussed above, the Board grants service connection for a back disorder and the assignment of a higher 70 percent rating for unspecified depressive disorder prior to October 25, 2017, and the Veteran is also service-connected for bilateral feet disabilities. Regardless of the rating to be assigned by the RO on the newly granted back disorder issue, the Veteran now meets the threshold schedular requirements for consideration of TDIU under § 4.16(a) throughout the time period on appeal. After carefully reviewing the evidence of record, the Board finds that the Veteran is unable to secure or maintain a substantially gainful occupation as a result of service-connected disabilities. Here, there is much evidence indicating that the Veteran’s feet and psychiatric disabilities have impacted her ability to work. She has not been employed since the 1990s, and her September 2012 VA examination report stated, “Because of the [foot] pain which is aggravated by long standing and walking in her job as a technician, she has not worked in the past six years.” Consistent with this assessment, the Veteran reported that “she has been unable to work for the past eight years in her job as a technician, because of severe [foot] pain and long standing which is necessary in her job, saying that it ‘made me cry all the time.’” See October 2004 VA foot examination. Also, the most recent October 2017 VA examination report noted that she “last worked in 1995. When at work[,] she was having issues with pain in her feet.” Moreover, Dr. H. indicated that her psychiatric disability further hindered her ability to be gainfully employed, stating her depressive disorder compromised “her ability to sustain social relationships and she is also unable to sustain work relationships. Therefore, I consider her permanently and totally disabled and unemployable.” July 2015 private psychiatric evaluation (emphasis added). Therefore, it is evidenced that the combined effect of the service-connected disabilities prevents her from obtaining and maintaining substantially gainful employment. Having resolved doubt in the Veteran’s favor, TDIU on a schedular basis is granted. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.Gielow, Counsel