Citation Nr: 18154040 Decision Date: 11/28/18 Archive Date: 11/28/18 DOCKET NO. 16-10 393 DATE: November 28, 2018 ORDER From July 13, 2011, to July 12, 2012, entitlement to a rating of 70 percent, but no greater, for depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. From July 13, 2012, entitlement to a rating in excess of 70 percent for depressive disorder is denied. Restoration of the rating of 10 percent for migraine headaches is granted, effective from November 21, 2014, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded. From September 20, 2014, entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is remanded. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. From July 13, 2011, to July 12, 2012, the Veteran’s depressive disorder is characterized by occupational and social impairment with deficiencies in most areas but not by total social and occupational impairment. 2. From July 13, 2012, the Veteran’s depressive disorder is characterized by social and occupational impairment with deficiencies in most areas but not by total social and occupational impairment. 3. The preponderance of the evidence fails to establish that the RO’s decision to reduce the Veteran’s rating for migraine headaches complied with the applicable regulations. CONCLUSIONS OF LAW 1. From July 13, 2011, to July 12, 2012, the criteria for a disability rating of 70 percent, but no greater, for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.130, Diagnostic Code 9434. 2. From July 13, 2012, the criteria for a disability rating in excess of 70 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1–4.14, 4.130, Diagnostic Code 9434. 3. The February 2015 rating decision that assigned a 0 percent rating for migraine headaches was improper and restoration of the 10 percent disability rating from November 21, 2014, is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.124a, Diagnostic Code 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1986 to October 2006. A hearing was not requested. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. From July 13, 2011, to July 12, 2012, entitlement to a rating of 70 percent, but no greater, for depressive disorder In August 2008, the RO granted service connection for depressive disorder at an initial rating of 30 percent under Diagnostic Code 9434 from November 1, 2006, the day after the Veteran left active service. That decision was not appealed and is final. On July 13, 2012, the Veteran filed a claim for an increased rating. In February 2015, the RO increased the Veteran’s rating to 70 percent from July 13, 2012. The Veteran is appealing that decision. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). Diagnostic Code 9434 provides compensation for major depressive disorders under the General Formula for Rating Mental Disabilities. 38 C.F.R. § 4.130. Under that code, a 30 percent rating is provided when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of the inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is provided when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: Flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent rating is provided 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 of the veteran 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. 38 C.F.R. § 4.130. The symptoms associated with the rating criteria are not intended to constitute exhaustive lists, but rather 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 disability rating under 38 C.F.R. § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration that result in the levels of occupational and social impairment provided. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). To adequately evaluate and assign the appropriate disability rating to the Veteran’s service-connected psychiatric disability, the Board must analyze the evidence as a whole and the enumerated factors listed in 38 C.F.R. § 4.130. Mauerhan, 16 Vet. App. at 436. As this claim was certified to the Board after August 4, 2014, DSM-5 is applicable to the claim. From July 13, 2011, to July 12, 2012, the evidence supports a rating of 70 percent. In a July 2012 statement, the Veteran’s spouse describes the Veteran’s symptoms during this time period. Starting in July 2010, she states that the Veteran’s “anxiety, stress and panic attacks were at an all time high and his anger and rage soon forced us to separate, with him returning to Texas.” This separation appears to have continued through at least September 2011, when the Veteran’s spouse indicates that she and the Veteran are “currently separated due to the severity of [the Veteran’s] symptoms.” See September 2011 SSA report of contact. Such symptoms include “horrible” short-term memory, bad temper, inability to maintain social relationships, and panic attacks. Consistent with the wife’s testimony, private medical records from this time frame consistently indicate symptoms of depression, memory difficulties, anxiety, and panic attacks, including those dated February 2012 and June 2012. This evidence supports a rating of 70 percent for the period of July 13, 2011, to July 12, 2012. The fact that the Veteran was separated from his wife for at least the period from July 2011 to September 2011 suggests the existence of deficiencies in family relations and an inability to maintain effective relationships. The wife’s description of the Veteran’s outbursts of anger are consistent with impaired impulse control. Additionally, both the wife’s statements and the Veteran’s private medical records suggest that the Veteran experiences near-continuous depression that interferes with his ability to function independently, appropriately, and effectively. This rating supports a rating of 70 percent for the period from July 13, 2011, to July 12, 2012. The evidence does not support a rating of 100 percent. In his September 2011 SSA disability application, the Veteran states that after taking a walk in the morning he spends the rest of the day “reading and doing basics of sustaining [himself] with personal hygiene & meals.” His mobility is limited, but he can cook for himself, do most household chores, buy groceries, pay bills, manage his money, and attend church weekly. A December 2011 private medical record states that the Veteran is on medication for depression but “in no acute distress” and “pleasant.” Private medical records consistently indicate that the Veteran is alert, oriented, and in no acute distress, including those dated December 2011, January 2012, and March 2012. Private medical records dated June 2012 and July 2012 state that the Veteran is “[a]ble to carry out daily routine activities” and describe the Veteran as “[a]lert and oriented.” The preponderance of this evidence is against the existence of total occupational and social impairment so as to support a rating of 100 percent. The Veteran is able to take care of himself while living alone, he is able to interact intelligently with his medical providers, and these providers regularly characterize him as oriented and in no acute distress. In light of this evidence, the Veteran is not entitled to a rating of 100 percent. Rather, the evidence more nearly approximates a rating of 70 percent based on the existence of occupational and social impairment with deficiencies in most areas. 2. From July 13, 2012, entitlement to a rating in excess of 70 percent for depressive disorder From July 13, 2012, the evidence is consistent with the current rating of 70 percent. For this time period, the Veteran and his spouse have competently, credibly testified that the Veteran continues to isolate himself, that his spouse has quit work to take care of him, and that any deviation from a deliberately strict schedule will result in “two to three days of increased severity of the symptoms, panic attacks, withdrawal, anxiety, depression, mood swings, irritability and so on.” See April 2015 statement. While the Veteran is clearly suffering, his symptoms are not so severe as to constitute total occupational and social impairment. In the August 2013 VA mental disorders examination the Veteran states that he has good relationships with his siblings and step-children, but not with his biological children. His relationship with his spouse is good. The examiner states that the Veteran is capable of maintaining his own finances and “does not appear to pose any threat of danger or injury to self or others.” It was further noted that the Veteran would have difficulty working with other people but “is likely to perform better when engaging in more solitary-type activities and jobs.” A January 2015 VA mental disorders examination states that the Veteran “interacted appropriately with the examiner” and displayed normal speech and judgment. A September 2015 private medical record states that the Veteran “feel[s] like an outsider in the word but is able to talk to fellow soldiers about his experiences.” He indicates that he has a good relationship with his wife and father but not with other family members. His private doctor describes him as alert, oriented, cooperative with the interview process, displaying normal speech, and with no evidence of thought disturbances or perceptual disturbances. The preponderance of the evidence is against the existence of total occupational and social impairment so as to support a rating of 100 percent. While the Veteran is easily agitated and requires his wife’s assistance, there is no evidence of gross impairment in thought processes, gross impairment in communication, persistent delusions, or persistent hallucinations. His memory loss is also not so severe as to support a rating of 100 percent. He remembers his sister very clearly and has consistently expressed his sadness regarding her recent death. He has consistently reported the same details relating to his in-service stressors. There is no evidence of disorientation to time and place. At least one examiner has said that the Veteran is competent to manage his own funds. Taken together, the Veteran is able to communicate intelligently with medical providers, maintain relationships with some family members, manage his own funds, and clearly recall events from service. The preponderance of this evidence is against the existence of total and social occupational impairment so as to support a rating of 100 percent. Rather, the Veteran’s symptoms more nearly approximate a 70 percent rating based on occupational and social impairment with deficiencies in most areas. In an April 2015 statement, the Veteran’s spouse disputes the accuracy of the January 2015 VA mental disorders examination. She specifically objects to the January 2015 finding that the Veteran’s symptoms have improved. Rather, she and her husband have learned how to better deal with his symptoms. The two of them must follow a strict routine with “socializing . . . kept to immediate family and a select 2–3 friends . . . .” Deviation from this schedule results in “stress and panic and consequences [she] wouldn’t wish upon [her] worst enemy.” As already noted, any change to their routine “will cause two to three days of increased severity of the symptoms, panic attacks, withdrawal, anxiety, depression, mood swings, irritability and so on.” While the Veteran’s spouse indicates that her husband’s his situation has changed, she does not indicate that it has actually worsened. The January 2015 VA finding that the Veteran’s symptoms have improved has played no part in the Board’s decision. Even taking this as true, the symptoms reported in that examination are nevertheless consistent with the Veteran’s current rating of 70 percent. The same is true of the symptoms reported in the April 2015 statement, already discussed above. For these reasons, the April 2015 statement does not by itself support a rating of 100 percent. Reduced Rating The Veteran claims error in a February 2015 rating decision that reduced the Veteran’s compensation for service-connected migraine headaches from 10 percent to 0 percent, effective November 21, 2014. Because this reduction did not result in a net decrease in compensation, the requirements of 38 C.F.R. § 3.105 are inapplicable. The law provides that where a rating reduction was made without observance of law, although a remand for compliance with that law would normally be an adequate remedy, in a rating reduction case the erroneous reduction must be vacated and the prior rating restored. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). A veteran’s disability rating shall not be reduced unless an improvement in the disability is shown to have occurred. 38 U.S.C. § 1155. When a veteran’s disability rating is reduced by the RO without following the applicable regulations, the reduction is void ab initio. See Greyzck v. West, 12 Vet. App. 288, 292 (1999). Prior to reducing a veteran’s disability rating, VA is required to comply with several general VA regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. See 38 C.F.R. §§ 4.1, 4.2, 4.10. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the veteran’s disability. Schafrath, 1 Vet. App. at 594. Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of his life and work. See Faust v. West, 13 Vet. App. 342, 350 (2000). In certain rating reduction cases, VA benefits recipients are to be afforded greater protections, as set forth in 38 C.F.R. § 3.344. These provisions are only applicable for ratings which have continued for long periods at the same level (five years or more). 38 C.F.R. § 3.344(c). Since the Veteran’s 10 percent disability rating for migraine headaches has been in effect since November 5, 2007, which is more than five years before the February 2015 rating decision, the protections under 38 C.F.R. § 3.344(a)–(b) apply. When a rating has continued for five years or more, a reduction may be accomplished when the evidence clearly warrants the conclusion that sustained improvement has been demonstrated, and when the rating agency determines that it is reasonably certain that the improvement will be maintained under the ordinary conditions of the veteran’s life. 38 C.F.R. § 3.344(a). Further, “[e]xaminations less full and complete than those on which payments were authorized or continued will not be used as a basis of reduction.” Id. Where doubt remains, the rating agency will continue the rating in effect, and consider scheduling reexamination 18, 24, or 30 months later. 38 C.F.R. § 3.344(b). The burden is on VA to justify a reduction in a rating. See Brown v. Brown, 5 Vet. App. 413 (1993) (requiring that the Board establish, by a preponderance of the evidence and in compliance with 38 C.F.R. § 3.344, that a rating reduction is warranted). 3. Restoration of the rating of 10 percent for migraine headaches is granted The February 2015 rating decision does not comply with the relevant statutes. It contains no indication or mention that there has been an improvement in the ability to function under the ordinary conditions of life and work. A review of the entire disability history was not conducted, in that neither the list of the evidence considered nor the narrative discussion addresses private treatment records received in February 2013 that indicate headaches. The February 2015 rating decision also does not address any of the medical evidence cited the August 2008 rating decision that granted service connection at an initial rating of 10 percent. Because the February 2015 rating decision is not based on the entire history of the Veteran’s disability and does not address improvement in the ability to function under the ordinary conditions of life and work, the applicable regulations have not been followed. The Board must restore the Veteran’s 10 percent rating for migraine headaches. Schafrath, 1 Vet. App. at 595. Once service connection has been granted, it can be severed only upon the Secretary’s showing that the rating decision granting service connection was “clearly and unmistakably erroneous.” See 38 C.F.R. § 3.105; Daniels v. Gober, 10 Vet. App. 474, 478 (1997). The burden of proof in such cases is on the Government. 38 C.F.R. § 3.105(d); Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Even assuming that the RO is correct in its belief that the previous grant of service connection was based on clear and unmistakable error, choosing to reduce the Veteran’s rating instead of severing service connection deprives the Veteran of his due process rights. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine is remanded. 2. From September 20, 2014, entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine is remanded. A VA examination of the joints must, wherever possible, include range of motion testing for pain on active motion, passive motion, weight-bearing, nonweight-bearing, and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 169–70 (2016). The January 2015 VA examination does not contain such findings. A new examination is required. 3. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy is remanded. 4. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy is remanded. The requested VA back examination will include an assessment of neuropathy symptoms related to the back, which could impact the Veteran’s increased rating claims for radiculopathy. Accordingly, the Board will defer any decision with respect to these claims pending the completion of the requested development. The matters are REMANDED for the following action: After obtaining any additional records to the extent possible, provide an examination and obtain a medical opinion regarding the nature and severity of the Veteran’s service-connected degenerative disc disease of the lumbar spine, to include his right and left lower extremity radiculopathy. The claims folder should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain the basis for this decision. The examiner should determine whether the Veteran’s degenerative disc disease of the lumbar spine is manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran’s range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Cannon, Associate Counsel