Citation Nr: 18155325 Decision Date: 12/04/18 Archive Date: 12/03/18 DOCKET NO. 16-43 600 DATE: December 4, 2018 ORDER Entitlement to an increased rating in excess of 50 percent for Major Depressive Disorder with bipolar (MDD) is denied. Entitlement to an effective date earlier than November 11, 2013, for the assignment of an increased, 50 percent rating for MDD is denied. REMANDED Service connection for a left hip disability (hip trochanteric bursitis associated with low back injury) is remanded. Service connection for a right hip disability (hip trochanteric bursitis associated with residuals low back injury) is remanded. Entitlement to a rating in excess of 20 percent for lumbar spine disability (residual of low back injury) is remanded. Entitlement to total disability rating for individual unemployability (TDIU) based on service-connected disability is remanded. FINDINGS OF FACT 1. For the entire rating period on appeal, the Veteran’s MDD has been manifested by occupational and social impairment with reduced reliability and productivity. 2. There was no informal claim, formal claim, or written intent to file a claim for an increased rating for the Veteran’s service-connected MDD following a final July 2000 rating decision and prior to November 9, 2013. 3. It is not factually ascertainable that an increase in the Veteran’s MDD disability level occurred within one year prior to the claim on November 9, 2013. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 50 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code (DC) 9434 (2017). 2. The criteria for an effective date earlier than November 9, 2013, for the assignment of a 30 percent rating for MDD have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to January 2000. 1. Increased Rating for MDD The Veteran contends that her service-connected MDD is more severe than is accounted for in her current disability rating of 50 percent. Legal Criteria Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995); 38 C.F.R. § 4.1. The Veteran’s MDD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, a 50-percent rating is warranted 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; and difficulty in establishing and maintaining effective work and social relationships. A 70-percent disability rating is warranted when there is 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. A 100-percent rating is warranted if there is 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under Section 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 117. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment associated with the DC to determine whether an increased evaluation is warranted. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). The amendments replace those references with references to the recently published Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). This claim is governed by the DSM-5. Factual Background The Veteran was initially granted service connection for MDD in a July 2000 rating decision and assigned a 10 percent disability rating. In January 2014 correspondence, the Veteran’s representative indicated the Veteran sought an increased rating for MDD. See January 2014 Third Party Correspondence. The Veteran’s VA psychiatric treatment record indicates that the Veteran complained of constant crying spells in January 2014. See January 2014 VA Mental Health Note, in CAPRI received in April 2014. On mental status examination (MSE), the Veteran was found to be neatly groomed, alert and oriented, and denied any hallucinations, paranoia, and homicidal or suicidal ideation. She requested a prescription for Depakote. Id. On follow up in February 2014, the Veteran reported feeling more stable with medication but stated she had low energy and concentration problems. See February 2014 VA Mental Health Note, in CAPRI received in April 2014. The Veteran’s MSE was mostly similar to her last visit, except she endorsed difficulty on focusing on tests and reading, and with organization. Id. The Veteran was provided a VA examination in May 2014 to assess the severity of her MDD. See May 2014 VA Mental Disorders Disability Benefits Questionnaire (DBQ). The examiner found that the Veteran’s psychiatric disability resulted in occupational and social impairment due to mild or transient symptoms decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Id. The examiner noted that the Veteran was very socially active, currently attended community college as a part-time student, and worked 15 hours in a work study program. Id. She further found that there was no change in the Veteran’s social functioning since the initial VA examination in May 2000. The examiner found the Veteran experienced symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, and disturbances of motivation and mood. Id. The Veteran reported that she missed the maximum days of classes allowed due to lack of motivation and depressed mood. The examiner opined that the Veteran was capable of maintaining sedentary employment. Id. In May 2014 rating decision, the Regional Office (RO) increased the Veteran’s rating for MDD to 30 percent disabling. Although the Veteran’s overall psychiatric symptoms were found to cause occupational and social impairment due to mild or transient symptoms, which is consistent with a 10 percent rating. The RO found that the Veteran’s symptoms more closely approximated the criteria for a 30 percent rating based on symptoms of, panic attacks (weekly), anxiety, disturbances of motivation and mood and depressed mood. The Veteran’s representative argued that the RO should have assigned a 50 percent rating and that Veteran could not secure and maintain gainful employment. See September 2015 Representative Brief, in Third Party Correspondence. During a May 2016 VA psychiatric treatment, the Veteran reported stable mood, and stated that bupropion was effective in stopping crying spells she reported in April 2016. See May 2016 VA Mental Health Note, in CAPRI received in August 2016. The Veteran was provided a second VA examination in April 2016. See VA April 2016 Mental Disorders DBQ. The examiner found that the Veteran’s psychiatric disability resulted in occupational and social impairment with reduced reliability and productivity. Id. The examiner noted there was no major changes since April 2014 VA examination. The Veteran reported she lives alone, maintains a close relationship with her family, but has missed several gatherings due to depression and lack of motivation. Id. She also reported she withdrew from her social activities due to depression. The Veteran also is a full-time student at the community college, and had completed one and one-half years. The Veteran reported she was having difficulty in school due to lack of attendance. Specifically, she noted that the had not attended a class in two weeks. Id. The examiner found that the Veteran’s symptoms included depressed mood, chronic sleep impairment, mild memory loss, and disturbance in motivation and mood. The examiner also opined that the Veteran’s psychiatric disability moderately impaired the Veteran’s ability to frequently interact with customers, peer, and supervisors, and had moderate impairment in sustaining concentration and focus required for most jobs. In an August 2016 rating decision, the RO increased the Veteran’s psychiatric disability rating from 30 percent to 50 percent effective, November 9, 2013. Analysis After a careful review of the evidence of, the Board finds that the Veteran’s MDD most nearly approximated occupational and social impairment with reduced reliability and productivity. The above-cited evidence reflects that the Veteran’s MDD was primarily manifested by depressed mood; anxiety; chronic sleep impairment; concentration problems; mild memory loss; and disturbance in motivation and mood. Collectively, these symptoms are of the type, extent, severity and/or frequency to result in occupational and social impairment with reduced reliability and productivity. Notably, the April 2016 VA examiner found that the Veteran’s MDD is productive of occupational and social impairment with reduced reliability and productivity. Given such, the Board finds that a rating of 50 percent is appropriate. As to a higher scheduler rating of 70 percent, the Board does not find such is warranted because the Veteran’s symptoms and overall impairment did not include those symptoms noted under this level of impairment or like symptoms that would exhibit the frequency, severity, and duration required of such a rating. See Vasquez-Claudio, 713 F.3d 117. Notably, the Veteran consistently had normal speech, she was also neatly dressed and groomed, and did not exhibit near-continuous panic or depression affecting ability to function independently, appropriately, and effectively. During the appeal period, the Veteran continued to attend community college full time despite absences related to depression. Moreover, the VA examiners noted that her social and occupational functioning has not changed significantly from previous VA examinations. The Board also notes that the Veteran consistently denied having suicidal ideations. Additionally, there is no evidence in her psychiatric treatment record of any suicide ideation or plan. The Veteran has not demonstrated any symptomatology of comparable severity to the listed symptoms considered by a 100- percent rating because she has denied any of the listed symptoms. See Mauerhan, 16 Vet App. 442; Vasquez-Claudio, 713 F. 3d 116-117. As such, the Board finds that the preponderance of the evidence is against a finding that the Veteran’s overall level of social and occupational impairment due to her mental health condition more nearly approximates the level contemplated by a 100-percent rating. For instance, none of the VA examiners found that the Veteran had abnormal speech and thought processes, whereas to be consistent with a 100-percent rating, it would require gross impairment in communication and thought processes. Moreover, the Veteran denied any persistent hallucinations or homicidal or suicidal intent during her VA examinations and at her psychiatric appointments, whereas to be consistent with a 100-percent rating it would require persistent hallucinations and persistent danger of hurting one self and others. Notably, the Veteran’s symptoms have been consistent throughout the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (finding that at the time of an initial rating “separate ratings can be assigned for separate periods of time based on facts found”, a practice known as “staged” rating). Here, however, the evidence warrants a uniform 50-percent rating. Finally, the Board has considered the Veteran’s lay statements concerning the symptoms of the service-connected disability and her medical history. The Veteran, as a lay person, is competent to describe observable symptoms because they come to her through her senses. However, her statements are not competent evidence as to the level of severity of a psychiatric disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The VA examination findings and VA treatment notes are competent and credible evidence concerning the nature and extent of the Veteran’s psychiatric disability. The medical professionals examined the Veteran, and the VA examiners rendered pertinent opinions in conjunction with the evaluations. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. Thus, based on the current record the Board does not find a rating of 70 or 100 percent is warranted. Therefore, the Board finds that the preponderance of the evidence is against a finding that the rating in excess of 50 percent is warranted. As the preponderance of the evidence is against the claim for an increase, the benefit of the doubt doctrine is inapplicable and the claim must be denied. 2. Earlier effective date for MDD The Veteran is seeking an effective date prior to November 9, 2013, for the assignment of a 30 percent disability rating MDD. See Notice of Disagreement (NOD). Generally, the effective date of a rating and award of compensation for an increased rating claim is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits, and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196 (1992). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 C.F.R. §3.400(o)(2). Under those circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (0)(2); Harper v. Brown, 10 Vet. App. 125 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence of record. Quarles v. Derwinski, 3 Vet. App. 129 (1992). The Board finds that the Veteran filed a claim for an increased rating of her MDD that was received on November 9, 2013. The evidence of record includes VA treatment records that indicate the Veteran’s psychiatric disability had ongoing psychiatric treatment involving psychotropic medicines, one year prior to November 9, 2013. There is no evidence prior to November 9, 2013 that shows the Veteran’s MDD worsened to meet the criteria for 30 percent disability rating. Therefore, it is not factually ascertainable that an increase in MDD occurred within the one year prior to the Veteran’s claim. As to whether a claim for an increased rating for MDD was filed prior to November 9, 2013, however, a review of the claims file reflects no such communication that would give rise to an earlier effective date. However, the Board notes that the Veteran was granted service connection for MDD and assigned a 10 percent disability rating in July 2000. The Veteran did not appeal that decision, and there is no indication that she filed a new claim or otherwise sought an increase for MDD between July 2000 and November 9, 2013. For these reasons, an effective date earlier than November 9, 2013, for the increase of the assigned rating of MDD to 30 percent is not warranted. The Board finds that the preponderance of the evidence is against the assignment of an earlier effective date, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Left and right hip disability (hip trochanteric bursitis associated with low back injury) is remanded. The Veteran was provided a VA examination in May 2014 to address the etiology of the Veteran’s bilateral hip disabilities. See VA Medical Opinion DBQ. The Board finds a remand is warranted to provide the Veteran a new VA examination as the VA examination of record contains deficiencies as outline below. First, the examination report failed to address whether the Veteran’s bilateral hip disabilities were directly related to active service. Specifically, the Veteran’s service treatment records (STRs) indicate that the Veteran was noted to have a history of low back pain and left sided sacroiliac pain and noted pain in hip in a November 1998 Treatment Note. See STR-Medical. Additionally, the Veteran complained of pain in her left hip in October 1999. Id. Thus, A remand is warranted to determine whether the Veteran’s current bilateral hip disabilities are related to the in-service treatment for hip pain, as well as any other in-service injuries including the January 1998 injury she sustained when she fell in a ditch and landed on her weapon during field exercises. Concerning secondary service connection the VA examiner opined that “Veteran’s b/l hip trochanteric bursitis is less likely related to lumbar sprain, there is a lack of evidence to show this hip condition is related to lumber sprain.” The examiner did not provide any additional discussion to support her opinion. The Board finds the opinion was not supported by adequate rationale. Additionally, the examiner did not provide an opinion as to whether any current bilateral hip disability was proximately aggravated by a service-connected disability. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013) (In a secondary service connection claim, a medical opinion that a disorder is not the result of an already service-connected disability does not address the issue of aggravation.); see also 38 C.F.R. § 3.310 (b) (service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability). Thus, upon remand, the RO should ensure that the VA examiner, if he or she finds a current bilateral hip disability, also provides a direct service connection etiology opinion and a secondary service connection etiology opinion, which also addresses the aggravation prong of secondary service connection for all of the Veteran’s hip disabilities that were diagnosed in or active during the appeal period. See 38 C.F.R. § 3.310. 2. Lumbar spine disability (residual of low back injury) A remand is warranted because the VA examinations of record in order to comply with the requirements of Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Veteran underwent VA examinations for his service-connected the lumbar spine disability in May 2014 and April 2016. These VA examinations did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016), which requires VA examiners to conduct range of motion testing for joints for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint pursuant to 38 C.F.R. § 4.59. Therefore, a remand is required so that the Veteran may be afforded a new VA examination that contains adequate information pursuant to Correia. The Board also finds the VA examinations do not comply with Sharp v. Shulkin, 29 Vet. App. 26 (2017), which requires VA examiners to inquire whether there are periods of flare-ups and, if the answer is yes, to state their “severity, frequency, and duration; name the precipitating and alleviating factors; and estimate, ‘per [the] veteran,’ to what extent, if any, they affect functional impairment.” Sharp, at 32. Although the VA examination reports reflect a positive indication of flare-ups and some information regarding the frequency and duration of such flare-ups, as well as certain types of functional impairment resulting therefrom, no estimation was provided regarding loss of range of motion during flares. In light of Sharp, a new examination is also necessary. Accordingly, in light of the above, the Board finds that a VA examination is necessary to ascertain the current severity of his service-connected lumbar spine disability in accordance with the requirements of Correia and Sharp. 3. Entitlement to TDIU due to service connected disabilities Finally, as to the issue of entitlement to TDIU, the Board finds the TDIU issue inextricably intertwined with the above increased rating and disability claims being remanded, as the criteria for TDIU are dependent, in part, on the Veteran’s service-connected disability ratings. Accordingly, the Board will also remand the issue of entitlement to a TDIU at this time. The Board also observes that current VA examinations of record do not provide insight into whether the Veteran is unemployable due to the combined effect of her service-connected disabilities, the Board finds that remand is appropriate for a VA TDIU examination. The matters are REMANDED for the following action: 1. The RO should obtain any outstanding VA treatment records pertaining to the Veteran’s bilateral hip and lumbar spine disabilities since August 2016, and associate them with the record. 2. After completing the foregoing development, provide the entire claims file (including this Remand decision) to a VA examiner(s) and for a new VA examination to obtain new etiology and nexus opinions for the bilateral hip disability claim. Any clinically indicated testing and/or consultations should be performed. The examiner is asked to address the following: (a.) Identify any currently present bilateral hip disability(s). For any hip disability(s) identified, is the disability at least as likely as not (50 percent probability or greater) due to, or caused by any incident in the Veteran’s active service, to include the January 1998 injury when the Veteran fell in a ditch and the in-service notations of left hip pain in November 1998 and October 1999. (b.) Is it at least as likely as not (50 percent probability or greater) that the Veteran’s current bilateral disability(s) had their onset or manifested within one year of the Veteran’s discharge in January 2000? (c.) If arthritis is found to be present, the examiner is to address whether it is as likely as not (50 percent probability or greater) related to any incident of service and/or had its onset within one year of her separation from service. (d.) Provide an opinion whether it is at least likely as not that the Veteran’s bilateral hip disability(s) was/were caused or aggravated beyond its/their natural progression by any of the Veteran’s service connected disabilities to include a lumbar spine disability. 3. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is instructed to review all pertinent records associated with the claims file. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. (a.) The examiner should report all signs and symptoms necessary for evaluating the Veteran’s service-connected lumbar spine disability under the rating criteria. (b.) The examiner should also provide the range of motion in degrees of the back. In so doing, the examiner should test the Veteran’s range of motion in active motion, passive motion, 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 so in the report. (c.) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use of the back. ANY ADDITIONAL IMPAIRMENT ON USE OR IN CONNECTION WITH FLARE-UPS SHOULD BE DESCRIBED IN TERMS OF THE DEGREE OF ADDITIONAL RANGE OF MOTION LOSS. THE EXAMINER SHOULD SPECIFICALLY DESCRIBE THE SEVERITY, FREQUENCY, AND DURATION OF FLARE-UPS; NAME THE PRECIPITATING AND ALLEVIATING FACTORS; AND ESTIMATE, PER THE VETERAN, TO WHAT EXTENT, IF ANY, SUCH FLARE-UPS AFFECT FUNCTIONAL IMPAIRMENT. 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 WHY THAT IS SO. (d.) THE EXAMINER SHOULD ALSO REVIEW THE MAY 2014 AND APRIL 2016 EXAMINATIONS AND PROVIDE A RETROSPECTIVE OPINION AS TO THE VETERAN’S FLARE-UPS BASED ON THE AFOREMENTIONED (SHARP) AND RANGE OF MOTION TESTING PURSUANT TO CORREIA. IF UNABLE TO PROVIDE THIS RETROSPECTIVE TESTING, THE EXAMINER SHOULD STATE WHY AND PROVIDE A REASONED EXPLANATION FOR THE DETERMINATION. 4. Provide the Veteran a VA examination to determine the impact of her service-connected disabilities on her employability. All pertinent symptomatology and findings must be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The claims file must be made available to and reviewed by the examiner. The examiner must elicit from the Veteran, and record for clinical purposes, a full work and educational history. Based on the review of the claims file, the examiner must provide an opinion as to whether the Veteran is unable to obtain or retain employment due only to her service-connected disabilities, consistent with her education and occupational experience, irrespective of age and any nonservice-connected disorders. An explanation for all opinions expressed must be provided. If an opinion cannot be provided without resort to speculation, it must be noted in the examination report, and an explanation provided for that conclusion. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel