Citation Nr: 18156996 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 14-44 129A DATE: December 11, 2018 ORDER Entitlement to an initial 100 percent rating for the Veteran’s service-connected mood disorder beginning September 15, 2010, is granted. Entitlement to an effective date of September 15, 2010, for the grant of basic eligibility for Dependents’ Educational Assistance (DEA) benefits under Chapter 35, Title 38 of the United States Code is granted. REMANDED The appeal for entitlement to an increased rating for a left knee disability, evaluated as 20 percent disabling from January 2, 2014, and 10 percent prior to that date, is remanded. The appeal for entitlement to service connection for a right hip disability, to include as secondary to the service-connected left knee disability, is remanded. The appeal for entitlement to service connection for a left hip disability, to include as secondary to the service-connected left knee disability, is remanded. FINDINGS OF FACT 1. The Veteran’s service-connected mood disorder has been productive of total occupational and social impairment since the date of receipt of his September 15, 2010 claim for service connection. 2. The Veteran is entitled to a permanent and total disability rating from September 15, 2010. CONCLUSIONS OF LAW 1. The criteria for an initial 100 percent rating for the Veteran’s mood disorder beginning September 15, 2010 have been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.130, Code 9435 (2017). 2. The criteria for entitlement to an effective date of September 15, 2010, for basic eligibility for DEA benefits under Chapter 35, Title 38 of the United States Code, are met; the criteria for an effective date prior to September 15, 2010 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 appeared at a hearing at the Regional Office (RO) before the undersigned Veterans Law Judge in July 2018. A transcript is in the record. The Board observes that claims for entitlement to an initial rating in excess of 30 percent for a service-connected mood disorder for the period prior to January 23, 2013 and entitlement to an effective date prior to January 23, 2013, for a 100 percent rating for a service-connected mood disorder have been separately developed and certified to the Board. As these are essentially different descriptions for the same claim, they will be considered as a single issue. Increased Rating The Veteran contends that the initial rating for his service connected mood disorder prior to January 23, 2013, is inadequate to reflect the impairment that was caused by that disability. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The appeal for a higher rating for the mood disorder is an appeal of the initial rating assigned for that disability. In determining an initial rating, the entire record from the effective date of service connection to the present is of importance in determining the proper rating of disability, and staged ratings are to be considered to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). Mood Disorder prior to January 23, 2013 Entitlement to service connection for a mood disorder secondary to chronic pain was granted in a May 2011 rating decision. An initial 30 percent rating was assigned, effective from the September 15, 2010 date of claim. This evaluation was increased to 100 percent by a January 30, 2014 rating decision, effective from January 23, 2013. The Veteran contends that he is entitled to the 100 percent rating from the initial date of service connection. The Veteran’s mood disorder is evaluated under the rating criteria for an unspecified depressive disorder, which is rated according to the General Rating Formula for Mental Disorders. Under this formula, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as gross impairment in thought process 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, or memory loss for names of close relatives, own occupation or own name. The only criteria for a total disability rating for any disability rated in accordance with the VA General Rating Formula for Mental Disorders are total occupational and social impairment. Sellers v. Principi, 372 F.3d 1318, 1324 (Fed. Cir. 2004) A 70 percent evaluation is merited 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 that is 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), and an inability to establish and maintain effective relationships. The criteria for a 70 percent rating are met if there are deficiencies in most of the areas of work, school, family relations, judgment, thinking, and mood. Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). A 50 percent evaluation is warranted for 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. 38 C.F.R. § 4.130, Code 9435. The current 30 percent evaluation is merited for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of 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, and mild memory loss (such as forgetting names, directions, recent events). Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Indeed, "VA must engage in a holistic analysis" that assess the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The evidence includes a September 2010 VA treatment note in which the Veteran reported feeling depressed, in constant pain, and unable to sleep. He also reported nightmares and flashbacks. He reported having sustained injuries to both knees during service and having had five reconstructive surgeries with minimal relief of pain. The Veteran said that this had changed his life significantly, in that he was very limited in his activities and unable to work. He felt depressed all the time and was easily frustrated. On mental status examination, he looked his age, was casually groomed and used crutches. Physical discomfort due to pain was noticeable. The Veteran was cooperative and had good eye contact. His speech was coherent and goal directed. The Veteran’s mood was sad and his affect was constricted. He denied hallucinations, and no delusions were elicited. He also denied suicidal and homicidal thoughts. The Veteran was alert, awake and oriented, his cognition was intact, and his insight and judgment were fair. The diagnoses were post-traumatic stress disorder (PTSD) and mood disorder due to pain. He was unemployed. A February 2012 VA mental health note indicates that the Veteran described himself as angry at the world. On mental status examination, the Veteran was well groomed and attentive but not at ease. His behavior was appropriate and speech normal, but his mood was depressed, angry and irritable. Thought process and content was within normal limits. The Veteran denied suicidal or homicidal ideations. His judgment and insight were good. The diagnosis was PTSD. An April 2012 VA mental health note states the Veteran was seen for individual psychotherapy. He presented with knee pain, frustration, anger, and self-isolation. On mental status examination, the Veteran was once again well-groomed and attentive but not at ease. His behavior was appropriate but tense. Speech was normal but his mood was depressed, angry, and irritable. Thought process and content were within normal limits. Judgement was only fair but insight was good. The Veteran continued to deny suicidal and homicidal ideations. In an April 2012 letter from the Veteran’s VA psychiatrist, he clarified that the Veteran continued to have flashbacks, nightmares, hypervigilance and recurrent intrusive thoughts. An August 2012 Psychiatric/Psychological Impairment Questionnaire completed by this same doctor states he has treated the Veteran every two months since October 2010. The diagnoses included PTSD and major depression. Symptoms included deficiencies in family relations, intermittent inability to perform activities of daily living, deficiencies in mood, difficulty in adapting to stressful circumstances, deficiencies in work or school, unprovoked hostility and irritability, inability to establish and maintain effective relationships, deficiencies in judgment, and depression that affected his ability to function independently, appropriately, and effectively. Other symptoms included flashbacks, nightmares, poor sleep, recurring intrusive thoughts, and hypervigilance. These caused the Veteran to be markedly limited, which effectively precluded him from performing activities in a meaningful manner. This marked limitation applied to the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual; the ability to work in coordination with and proximity to others without being distracted by them; the ability to complete a normal workweek without interruptions from psychologically based symptoms; and the ability to accept instructions and respond appropriately to criticism from supervisors. He was also moderately limited in the ability to interact appropriately with the general public and to travel or use public transportation. The examiner opined that the Veteran would not be capable of performing full-time competitive work, and estimated these symptoms had been present since 2004. The Veteran’s prognosis was poor. VA treatment records dating from August 2012 to November 2012 show that the Veteran continued to report nightmares and flashbacks. In addition to the continuation of the previous symptoms, he had a low mood, low energy, low motivation, and difficulty sleeping. November 2012 records indicate he did not want to get out of bed. The Board finds that the symptoms displayed by the Veteran support entitlement to a 100 percent rating for his mood disorder for the entire appeal period. The August 2012 questionnaire completed by the Veteran’s VA psychiatrist states that the Veteran has not been capable of performing full-time competitive work since 2004, and there is no competent opinion to the contrary. This indicates total occupational impairment. The August 2014 questionnaire notes that the Veteran has intermittent inabilities to perform activities of daily living. He was also markedly limited in the ability to be around and coordinate with others, to interact with the general public, and to use public transportation. It appears that this is the result of symptoms that include a high level of frustration and irritability, and the Veteran testified that he frequently gets into arguments with strangers with little provocation. This may result in a persistent danger of hurting his self or others, or in grossly inappropriate behavior. The Board finds that these symptoms more nearly resemble total social impairment. As this doctor opined that the Veteran’s level of impairment has been present since 2004, the entire appeal period is included. It follows that the Veteran has had total occupational and social impairment since service connection was established from September 15, 2010, and that a 100 percent rating is warranted for the entire period. Earlier Effective Date for Chapter 35 Benefits For the purposes of educational assistance for dependents under 38 U.S.C. Chapter 35, the child or surviving spouse of a veteran will have basic eligibility if the following conditions are met: (1) the veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran’s death; or (4) the veteran died as a result of a service-connected disability. 38 U.S.C. §§ 3501, 3510 (2012); 38 C.F.R. §§ 3.807 (a), 21.3021 (2017). As a result of the Board’s grant of a 100 percent rating for the Veteran’s service connected mood disorder, herein, the Veteran has a total disability rating effective September 15, 2010. Thus, the general criteria for Chapter 35 eligibility are met since September 15, 2010, but no earlier. REASONS FOR REMAND 1. Increased Rating for a Left Knee Disability 2. Service Connection for a Right Hip Disability. 3. Service Connection for a Left Hip Disability. The Veteran’s claims file includes a January 2014 note in which his statement at a recent VA examination that he was receiving disability benefits from the Social Security Administration (SSA) was acknowledged. The note adds that any additional development for these records would be deferred to implement the increased rating for the Veteran’s mood disorder. At the July 2018 hearing, the Veteran also testified that he has been in receipt of SSA disability benefits since 2005. There is no indication in the claims file that any action has been taken to obtain these records since the January 2014 note. The Board notes that VA has a duty to obtain all relevant records in the custody of a Federal agency. 38 C.F.R. § 3.159(c)(2). As the decision to award SSA benefits and, perhaps more importantly, any decision that addresses whether to maintain these benefits may be relevant, remand is required to obtain them and the medical records on which they were based. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). Furthermore, as the most recent VA examination of the Veteran’s left knee disability will be over five years old before the requested development is completed, a new examination to ascertain the current symptomatology of that disability should be scheduled. Turning to the claims for service connection for a right hip disability with replacement and left hip disability with replacement to include as secondary to the service connected left knee disability, the Veteran contends that both hip disabilities were the result of either an altered gait caused by his left knee, or the use of corticosteroids or other medications to treat his left knee disability. The pertinent regulations state a disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310 (a). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service connected disability. In this instance, the veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran was afforded a VA examination of his hips in November 2011. At the conclusion, the examiner opined that the bilateral hip disabilities and subsequent total hip replacements were not related to the left knee. The Veteran was noted to have had his hip replacements due to bilateral avascular necrosis, and the examiner explained that condition is not caused by an altered gait. Unfortunately, the November 2011 opinion is inadequate for two reasons. First, the examiner failed to address whether one or both of the Veteran’s hip disabilities could have been aggravated by the service connected left knee disability. Second, there is a portion of the opinion that mentions corticosteroid use, but the meaning as to whether it can be an initial or aggravating cause is unclear. The Board concludes that a new opinion that addresses these matters must be obtained. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from January 2014 to the present. 2. Obtain the Veteran’s federal records from the Social Security Administration pertaining to the initial award and maintenance of disability benefits. This should include the decisions as well as all medical records pertaining to the decisions. Document all requests for information as well as all responses in the claims file. 3. After associating any records that are obtained with the claims file, schedule the Veteran for an examination of the current severity of his left knee disability. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee disability alone and discuss the effect of the Veteran’s left knee disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 4. After associating any records that are obtained with the claims file, schedule the Veteran for a VA examination of his hips. All indicated tests and studies should be conducted. The claims file must be provided to the examiner for use in the study of this case. After a review of the claims file, the examiner is to provide the following opinions: a. Is it as likely as not that one or both of the Veteran’s hip disabilities/replacements was incurred due to the Veteran’s service connected left knee disability? The examiner must address both the possibility of incurrence due to altered gait and, if verified in the claims file, due to the use of corticosteroids or other medications to treat the left knee disability. b. If the answer to (a) is “no,” is it as likely as not that one or both of the Veteran’s hip disabilities/replacements was aggravated (increased in severity beyond normal progression) by the Veteran’s service-connected left knee disability for the same reasons? If aggravation has occurred, can a baseline in severity prior to aggravation be identified? If so, describe that baseline. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. L. Prichard, Counsel