Citation Nr: 18158078 Decision Date: 12/18/18 Archive Date: 12/14/18 DOCKET NO. 16-57 373 DATE: December 18, 2018 ORDER An initial rating in excess of 30 percent for an acquired psychiatric disorder is denied. A 20 percent rating, but no higher, for a scar disability is granted. Service connection for a sleep disability is denied. An earlier effective date prior to May 8, 2009 for a scar disability is denied. An earlier effective date prior to January 19, 2010 for a back disability is denied. An earlier effective date prior to January 19, 2010 for a right hip disability is denied. An earlier effective date prior to January 19, 2010 for a right knee disability is denied. REMANDED An initial rating in excess of 10 percent for a right ankle disability, to include complex regional pain syndrome, is remanded. An initial rating in excess of 20 percent for a back disability is remanded. An initial rating in excess of 10 percent for a right hip disability is remanded. An initial rating in excess of 10 percent for a right knee disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The Veteran’s psychiatric disorder is not manifested by occupational and social impairment with reduced reliability and productivity. 2. The Veteran has three painful scars. 3. The Veteran’s sleep disability was not incurred in or due to his time in service nor is it proximately due to any of his service connected disabilities. 4. The evidence does not show the Veteran filed a claim prior to May 8, 2009 for a scar disability. 5. The evidence does not show the Veteran filed a claim prior to January 19, 2010 for a back disability. 6. The evidence does not show the Veteran filed a claim prior to January 19, 2010 for a right hip disability. 7. The evidence does not show the Veteran filed a claim prior to January 19, 2010 for a right knee disability. CONCLUSION OF LAW 1. The criteria for an initial rating in excess of 30 percent for an acquired psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 9400. 2. The criteria for a 20 percent rating, but no higher, for scars have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, DC 7805. 3. The criteria for the establishment of service connection for a sleep disability are not met. 38 U.S.C. §§ 1101, 1110, 5107(b); 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for an effective date prior to May 8, 2009 for the award of service-connected scars have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 5. The criteria for an effective date prior to January 19, 2010 for the award of a service-connected back disability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 6. The criteria for an effective date prior to January 19, 2010 for the award of a service-connected right hip disability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. 7. The criteria for an effective date prior to January 19, 2010 for the award of a service-connected right knee disability have not been met. 38 U.S.C. §§ 5107 (b); 38 C.F.R. §§ 3.155, 3.400. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 19, 2007 to May 20, 2007 and served in the Army National Guard from November 2006 to January 2009. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a service-connected disability adversely affects a claimant’s ability to function under the ordinary conditions of daily life, including employment, by comparing the 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In a claim for a greater original rating after an initial award of service connection, all the evidence submitted in support of the Veteran’s claim is to be considered. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Psychiatric Disorder The Veteran contends his psychiatric disorder is worse than indicated by his 30 percent disability rating. The Veteran is currently rated under DC 9400. Under DC 9400, a 30 percent evaluation requires occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. A 50 percent evaluation requires 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 rating is prescribed when there is evidence of 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 work like setting); and inability to establish and maintain effective relationships. A 100 percent rating is prescribed when there is evidence of 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 as to time or place; and memory loss for names of close relatives, own occupation, or own name. 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, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Veteran was afforded an examination for his mental health in January 2015. The examiner opined the Veteran’s mental health disability led to occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The examiner reviewed the Veteran’s file and noted the Veteran’s relevant history. The examiner noted the Veteran’s symptoms of depressed mood, anxiety, panic attacks that occurred weekly or less often, and chronic sleep impairment. The examiner observed the Veteran’s hygiene was good, speech was normal, and his thought processes were normal. The Veteran did not report hallucinations and denied suicidal and homicidal ideations. The Veteran was afforded another examination for his mental health in October 2016. The examiner opined the Veteran’s psychiatric disorder led to occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The examiner reviewed the Veteran’s file and discussed the Veteran’s occupational, education, and other relevant history. The examiner noted the Veteran’s hygiene was appropriate, his speech was normal, he had normal thought processes with the Veteran not reporting any hallucinations and denying suicidal or homicidal ideations. The Veteran did report problems sleeping, vivid dreams of people attacking him, lacking a sense of purpose for self, and mild anxiety. The Veteran reported a good relationship with his wife, engaging in social and leisure activities, and volunteering regularly. The Veteran’s medical records show he has been seen over the years for his acquired psychiatric disorder. During those visits, the evidence does not show the Veteran suffered from symptoms such as flattened affect, problems with his speech, difficulty understanding complex commands, panic disorder, impaired judgement, suicidal or homicidal ideations, which would warrant a higher rating. The Veteran has had symptoms such as anxiety, stress, poor appetite, and depressed mood. The Board finds the Veteran’s symptoms more closely approximate those of a 30 percent rating and therefore, an increased rating will be denied. Scars The Veteran contends his scar disability is worse than indicated by his noncompensable rating. The Veteran is currently rated under DC 7805 for his scars. Under this DC, scars and other effects of scars are to be evaluated under DCs 7800, 7801, 7802, or 7804. DCs 7800, 7801, and 7802 all deal with scars related to burns. Therefore, the Board will evaluate the Veteran’s scars under DC 7804. DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. The Veteran was afforded an examination for his scars in October 2010. The examiner noted the Veteran’s right ankle scars and noted they were all superficial. The examiner reported none of the scars were painful to the touch. The Veteran was afforded another examination for his scars in June 2015. The examiner noted the Veteran had three painful scars which are hypersensitive with pain even to light touch. However, the Veteran’s scars were not unstable, nor were they both unstable and painful. Based on the Veteran’s three painful scars, the Board finds an increased rating of 20 percent, but no higher, is warranted. A higher 30 percent rating is not warranted as the Veteran does not have five or more unstable or painful scars. Regarding all the above, neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Service Connection Generally, to prevail on a claim of service connection on the merits, there must be competent evidence of (1) a current disability, (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury, and (3) medical evidence or other competent evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To establish service connection on a secondary basis, the evidence must show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a)(b) (2016), Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). The Veteran contends he has a sleep disability which was incurred and due to his time in service, to include as secondary to his service connected disabilities. The Veteran’s record does not indicate he has been formally diagnosed with a sleep disorder. The Veteran’s medical records do show he is often kept awake by his mental health disability and the pain from his service connected disabilities. However, no formal diagnosis is noted in the Veteran’s record. Additionally, the Veteran’s STRs are negative for mention of a sleeping disability while in service. The Veteran’s record is also negative for any objective evidence linking any current sleep disability to the Veteran’s time in service or proximately to his service connected disabilities. While the Veteran’s records mention he often does not sleep, because no formal diagnosis has been made and because there is no objective link between his sleep problems and his time in service or his service connected disabilities, the claim must be denied. Regarding all the above, the Board acknowledges the Veteran’s statements that he believes his disabilities are related to his time in service or proximately due to his previously service connected disabilities. The Board also acknowledges the Veteran’s, his neighbor’s, and his spouse’s statements regarding the deterioration of the Veteran’s health and how he cannot sleep, suffers from anxiety and depressed mood, and painful scars. The Board also understands the Veteran’s statements that he has severe difficulty working due to the pain from his service connected disabilities. However, the Veteran is not competent to opine on complex medical issues such as the nature, etiology, or severity of his disabilities. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the medical evidence of record. Earlier Effective Date In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Generally, the effective date of an award of disability compensation based on an original claim shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The effective date of an award of disability compensation based on a claim to reopen after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (q)(ii), (r). The provisions of 38 C.F.R. § 3.400 (b)(2) allow for assignment of an effective date the day following separation from active service if a claim is received within one year after separation from service. Regarding the date of entitlement, the term “date entitlement arose” is not defined in the current statute or regulation. However, it is the date when the veteran met the requirements for the benefits sought, which is determined on a “facts found” basis. 38 U.S.C. § 5110 (a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). An effective date generally can be no earlier than the “facts found.” DeLisio v. Shinseki, 25 Vet. App. 45 (2011). These “facts found” include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation. For instance, if a veteran filed a claim for benefits for a disability before he actually had the disability, the effective date for benefits can be no earlier than the date the disability first manifested. Ellington v. Peake, 541 F.3d 1364, 1369-70 (Fed. Cir. 2008). Any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. 38 C.F.R. § 3.155 (a). The Veteran contends his effective date for his award of service connection for his scar disability should be prior to May 8, 2009. The Veteran filed his claim of service connection for a scar disability on May 8, 2009. After a review of the record, the Veteran did not file a claim, either formal or informal, prior to this date. There is no communication prior to this date that could be construed as a claim for these benefits. Therefore, May 8, 2009 is the earliest effective date for an award of service connection and the claim is denied. The Veteran contends his effective date for his award of service connection for his back, right hip, and right knee should be prior to January 19, 2010. The Veteran first notified VA of his intention to file a claim for these disabilities in a January 19, 2010 letter to his senator’s office in which he asserted these disabilities were secondary to his right ankle condition. After a review of the record, the Veteran did not file a claim, formal or informal, prior to January 19, 2010 for these disabilities. Additionally, there is no communication that could be construed as a claim for service connection for these disabilities prior to January 19, 2010. Therefore, an earlier effective date for back, right hip, and right knee disabilities is denied. Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). REASONS FOR REMAND Although the Board regrets the delay, a remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide his claims regarding an increased rating for the Veteran’s right ankle, back, right hip, and right knee disabilities. The Veteran has been afforded multiple examinations for his right ankle, back, right hip, and right knee disabilities. (See February 2010, December 2010, January 2011, May 2011, July 2011 examinations.) More recently, the Veteran was afforded an examination for his right ankle in September 2013. The examiner noted the Veteran’s limited range of motion and stated the Veteran reported flares ups of his disability that could not be replicated at the examination. The Veteran was afforded an examination for his right ankle in June 2015 and for his back, right hip, and right knee in January 2015. In these examinations, the Veteran’s extremities were not tested on both active and passive motion and in weight-bearing and non-weight-bearing positions. Veteran also reported flare ups of his disabilities. In Correia v. McDonald, 28 Vet. App. 158 (2016), the United States Court of Appeals for Veterans Claims (Court) held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59 (2017). The final sentence of section 38 C.F.R. § 4.59 (2017) directs that the joints involved should be tested 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. Additionally, a recent Court decision addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Because the examinations did not offer opinions consistent with the requirements above, new examinations are required. Correia v. McDonald, 28 Vet. App. 158 (2016), Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The Veteran’s combined disability rating is currently 60 percent with no service connected disability rated as higher than 30 percent disabling. As such, he currently does not meet the requirements under 38 C.F.R. § 4.16(a) for a schedular TDIU. Therefore, the matter of a TDIU is also being remanded as the outcome of the examinations and their results on the Veteran’s combined disability rating may make him eligible for a TDIU. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board finds there is also sufficient evidence to meet the criteria for submission of the Veteran’s claim to the Director of Compensation and Pension Service for consideration of TDIU on an extraschedular basis. Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under § 4.16(b) and may only refer the claim to the Director of Compensation and Pension Service for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). The Veteran previously worked as a manager and a teacher. The Veteran has a Master’s Degree. The Veteran has stated multiple times that his complex pain from his multiple service connected disabilities render him unable to keep a job. The Veteran’s record shows he was let go from a previous job because he was unable to keep up with the physical demands of the job and multiple examiners have opined the Veteran would have difficulty sitting for extended periods of time. The Veteran himself has submitted statements discussing how his service connected disabilities have led to so much pain, he is unable to focus, stand, sit, or perform physical activity. The medical evidence, along with the Veteran’s lay statements, show his occupational functioning is impacted by his service-connected disabilities. Therefore, referral to the Director of Compensation and Pension Service for consideration of TDIU on an extraschedular basis is warranted if a schedular TDIU cannot be granted. The matter is REMANDED for the following action: 1. The AOJ should obtain any of the Veteran’s outstanding medical records and associate them with the claims file. If possible, the Veteran himself should submit any pertinent new evidence regarding the condition at issue in order to expedite the claim. 2. After completing the above development and all outstanding records have been associated with the claims file, the Veteran should be afforded appropriate VA examinations for his right ankle, back, right hip, and right knee disabilities. The record, to include a copy of this Remand, must be made available to and be reviewed by the examiner. (a) The Veteran’s disabilities should be tested 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. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, s/he should clearly explain why that is so. (b) The examiner must estimate any functional loss in terms of additional degrees of limited motion experienced during flare-ups and repetitive use over time. If the examiner cannot provide the above-requested opinion without resorting to speculation, s/he should state whether all procurable medical evidence has been considered, to specifically include the Veteran’s description as to the severity, frequency, duration of the flare-ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner’s medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. The examiner should provide a complete rationale for any opinion provided. 3. Readjudicate the Veteran’s claims, including his claim for a schedular TDIU. 4. Thereafter, unless the AOJ finds that a fully favorable decision can be rendered for a schedular TDIU, refer the claim to the Director of Compensation and Pension Service for consideration of whether a TDIU on an extraschedular basis is warranted. (Continued on the next page)   5. After undertaking any other appropriate development deemed necessary, readjudicate the issues on appeal based on the additional evidence of record. If the determinations remain adverse to the Veteran, he must be provided with a supplemental statement of the case. An appropriate period of time must then be allowed for a response before the record is returned to the Board for further review. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel