Citation Nr: 18160888 Decision Date: 12/28/18 Archive Date: 12/27/18 DOCKET NO. 11-17 557 DATE: December 28, 2018 ORDER Entitlement to an increased rating in excess of 70 percent disabling for the service-connected persistent depressive disorder is denied. REMANDED Entitlement to an increased disability rating in excess of 10 percent disabling for residuals of a left inferior public ramus stress fracture is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to May 3, 2017, is remanded. FINDING OF FACT The Veteran is capable of adequate thought processes and communication, appropriate behavior, and ability to perform activities of daily living; her service-connected is not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for an increased disability rating in excess of 70 percent for the Veteran’s service-connected persistent depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to December 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2008, January 2010, and August 2017 rating decisions, respectively, by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. An August 2018 rating decision granted an increased 10 percent disability rating for residuals of left inferior public ramus stress fracture effective August 11, 2008 (date of claim), and an increased 70 percent disability rating for an acquired psychiatric disorder effective May 3, 2017 (date entitlement arose). As these are not the maximum disability ratings possible, the appeals remain in appellate status and are properly before the Board. AB v. Brown, 6 Vet. App. 35 (1993). The August 2018 rating decision also granted TDIU benefits effective May 3, 2017 (date schedular criteria were satisfied). Because the Veteran was not awarded the highest rating possible, including TDIU, for the entire period on appeal, the issue of entitlement to TDIU for the period prior to May 3, 2017, remains in appellate status, and the Board has jurisdiction to consider this matter. Harper v. Wilkie, No. 16-3519, 2018 U.S. App. Vet. Claims LEXIS 1618 (Vet. App. Dec. 6, 2018). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Id.; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). 1. Entitlement to an increased rating in excess of 70 percent disabling for a persistent depressive disorder The Veteran’s acquired psychiatric disorder is currently evaluated as 70 percent disabling under 38 C.F.R. § 4.130, Diagnostic Code 9434 under the General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 70 percent disability rating is warranted where the evidence reflects a mental disability results in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted where the evidence reflects a mental disability results in 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the General Rating Formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. at 116-17. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria; rather than solely on the examiner’s assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a). Based on a review of the evidence, the Board finds that an increased rating in excess of 70 percent disabling for the Veteran’s PTSD is not warranted in this case because the Veteran does not demonstrate particular symptoms associated with a higher 100 percent rating, or others of similar severity, frequency, and duration that would more closely approximate the criteria for the higher rating. In making that finding, the Board notes that the record does not reflect any symptomatology readily associated with a higher 100 percent rating such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger to self and others; or an inability to perform activities of daily living, including maintenance of personal hygiene. While the presence of these symptoms is not outcome determinative, the record also does not reflect other symptomatology of similar severity, frequency, and duration. For instance, VA medical treatment records dated in April 2017 reflect the Veteran identified her friends as her social support system. Report of the August 2017 VA examination reflects, in pertinent part, the Veteran is well-groomed, dress casually, polite and cooperative, alert and oriented, and her thought processes was logical. VA medical treatment records dated in October 2017 reflects the Veteran has been working on “self-care and cooking for herself as well as reaching out to close friends.” VA treatment records dated in January 2018 reflect the Veteran has been “accessing [social] support through online grief groups” and has attended breast cancer support groups. VA treatment records dated in June 2018 reflect the Veteran is “getting out of the house more and spending time with friends . . . having some moments of joy, sharing a new relationship.” The record overwhelmingly reflects the Veteran’s cognition is grossly intact. Given the frequency, severity, and duration of the psychiatric symptoms described by the Veteran and documented in the record, the Board finds it does not more nearly approximate total social and occupational impairment, but rather reflects a lesser degree of impairment that is contemplated by the 70 percent rating assigned. Based on a review of the foregoing evidence, and the applicable laws and regulations, the Board sympathetically finds that the preponderance of the evidence is against the Veteran’s claim for increased rating in excess of 70 percent for an acquired psychiatric disorder. The Board has also considered whether an effective date earlier than May 3, 2017, for an increased 70 percent disability rating is warranted. It is well-established that an effective date of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability level had occurred, if application is received within one year of such date. 38 C.F.R. § 3.400(o)(2). The Veteran filed a claim for increased compensation for service-connected psychiatric disorder in July 2017. Based on a review of the evidence, the Board finds that an effective date earlier than May 3, 2017, for increased 70 percent disability rating for an acquired psychiatric disorder is not warranted in this case because the evidence reflects that the increase in severity first occurred more than one year before the date of the claim. For instance, VA treatment records dated in December 2008 reflect the Veteran expressed her belief that “she would be better off not being around.” Similarly, VA treatment records dated in September 2010 reflect a history of suicidal ideations – a symptom contemplated by a 70 percent disability rating. Given the increase in severity first occurred more than one year before the date of the claim, 38 C.F.R. § 3.400 (o)(2) would not apply and the effective date of the increased 70 percent rating is the most favorable date that can be assigned. In reaching these conclusions, the Board has considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Accordingly, the appeal is denied. REASONS FOR REMAND 1. Entitlement to an increased disability rating in excess of 10 percent disabling for residuals of left inferior public ramus stress fracture Remand is required for further clarification of the evidence of record prior to appellate consideration. Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (emphasizing the Board’s duty to return an inadequate examination report “if further evidence or clarification of the evidence... is essential for a proper appellate decision”). Where VA undertakes to provide an examination, or obtain an opinion when developing a claim, even if not statutorily obligated to do so, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). A medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). If an opinion is based on an inaccurate factual premise, then it is correct to discount that opinion. Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). The failure to consider the lay statements regarding matters on which a veteran is competent to testify to renders an examiner’s opinion inadequate. Dalton v. Nicholson, 21 Vet. App. 23, 39 (2007). VA examination were most recently provided in May 2016 and June 2017, respectively. Report of the May 2016 VA examination reflects, in pertinent part, the Veteran denied the occurrence of flare-ups. The examiner noted there was no evidence of pain on examination, or additional functional impairment due to pain, weakness, lack of endurance, fatigue, or incoordination. Similar findings were noted at the June 2017 VA examination. The totality of the evidence of the record, however, reflects the Veteran has consistently reported pain and flare-ups. For instance, VA medical treatment records dated in July 2008 reflect the Veteran presented with chronic pelvic pain stemming from prior left inferior pubic ramus stress fracture. VA medical treatment records dated in September 2009 reflect the Veteran’s statements describing flare-ups that occur 2 or 3 times per week—sometimes much more frequent. Report of the October 2009 VA examination noted chronic pelvic pain radiating to the left groin and left buttocks area, which is exacerbated by prolonged sitting or standing and relieved when supine. At that time, the examiner noted weekly flare-ups of pelvic pain lasting a few hours. A private physician’s statement dated October 2009 reflects a history of chronic pelvic pain with flare-ups that cause increased stiffness and decreased range of motion. In equating the pain experienced, the physician indicated the “impairment is best described as ankylosis of the hip” during flare-ups. VA medical treatment records dated in September 2012 reflect ongoing flare-ups of pain. Lastly, VA medical treatment records dated in January 2014 reflect the Veteran indicated increased flare-ups “due to cold weather.” Given the totality of evidence throughout the record is replete with references to pain and flare-ups, the complete absence of any reported pain or flare-ups at the May 2016 and June 2017 VA examinations is peculiar – especially in light of subsequent VA medical treatment records reflecting persistent pelvic pain. For instance, VA medical treatment records dated in July 2017 reflect the Veteran described her ongoing pelvic pain level as 9 out of 10. The Veteran used assistive devices to ambulate. Parenthetically, the Board notes the seemingly interchangeable reference to pelvic and lumbar pain. The Veteran is not service-connected for a lumbar disability. However, the May 2016 VA examiner indicated that the pain in the Veteran’s back is not a primary back condition, but rather is referred pain from her service-connected left inferior pubic ramus stress fracture. It is not clear whether or to what extent the examiner considered the prior statements regarding persistent pain and flare-ups. Dalton, 21 Vet. App. at 39. Additionally, the Board notes that in increased evaluation claims, a VA examination report is not adequate without an explanation for an examiner’s failure to evaluate the functional effects of a flare-up. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board may accept a VA examiner’s statement that he or she cannot offer an opinion in that regard without resorting to speculation, but only after determining that this is not based on the absence of procurable information or on a particular examiner’s shortcomings or general aversion to offering an opinion on issues not directly observed. Although not binding on VA examiners, the VA Clinician’s Guide instructs examiners when evaluating certain musculoskeletal conditions to obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves. Sharp, 29 Vet. App. at 34-35, citing VA CLINICIAN’S GUIDE, ch. 11. For example, a VA examination report is not adequate when the VA examiner failed to elicit relevant information as to the veteran’s flares or ask her to describe the additional functional loss, if any, he suffered during flares and then estimate the veteran’s functional loss due to flares based on all the evidence of record—including the veteran’s lay information—or explain why she or he could not do so. Sharp, 29 Vet. App. at 34-35. In light of the foregoing, the Board finds that a remand is necessary to provide the Veteran with a new VA examination that adequately reflects consideration of the evidence of record, including the lay information of record. 2. Entitlement to a TDIU prior to May 3, 2017 is remanded. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his or her employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Id. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). The Veteran is currently service-connected for the following: residuals of left inferior pubic ramus stress fracture (rated as noncompensable prior to August 11, 2008, and 10 percent therefrom), and persistent depressive disorder (rated as 30 percent prior to May 3, 2017, and 70 percent therefrom). Disabilities are combined using the Combined Ratings Table found at 38 C.F.R. § 4.25. Using this table, the Veteran’s combined rating for her service-connected disabilities is, in pertinent part, 10 percent from August 11, 2008, 40 percent from December 21, 2009, and 70 percent from May 3, 2017. As indicated above, an August 2018 rating decision, in pertinent part, granted a TDIU, effective May 3, 2017 (the earliest date the Veteran meets the minimal percentage criteria for TDIU on a schedular basis). See 38 C.F.R. §§ 4.16(a), 4.25. As mentioned, however, a total rating on an extraschedular basis, may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Thus, consideration of whether the Veteran is, in fact, unemployable prior to May 3, 2017, is still necessary in this case. Here, the Veteran has consistently reported that she is unable to work due to pain and/or discomfort and her psychiatric symptoms. For instance, VA medical treatment records dated in May 2009 reflects persistent depression, difficulty sleeping, loss of interest, and loss of energy. VA treatment records dated in April 2010 reflect the Veteran’s mind is “mainly preoccupied with dealing with her chronic pain issues.” The record also reflects a history of suicidal ideations varying in frequency and severity. In particular, VA medical treatment records dated in December 2008 reflect the Veteran’s statement that “she would be better or not being around due to [her chronic] pain.” The Veteran has consistently reported pain precipitated by prolonged sitting, standing, and/or walking. This is consistent with the evidence of record. On one hand, an August 2016 medical opinion reflects the Veteran is precluded from employment requiring more than slight physical activity. In particular, the examiner noted that the Veteran’s residual pain of left inferior pubic ramus fracture functionally limits his ability to stand or sit more than 10-15 minutes. On the other hand, report of the May 2017 VA psychiatric examination reflects the Veteran’s psychiatric disability limits his ability to secure or maintain employment. In doing so, the examiner noted that Veteran’s psychiatric symptoms such as chronic sleep impairment and related fatigue, loss of interest, loss of motivation, and persistent suicidal ideations would make it difficult for the Veteran to secure employment. Even if the Veteran was able to secure employment, her psychiatric symptoms would make it make maintaining such employment difficult. For instance, the Veteran’s depression and low self-worth would “make it difficult for her to engage well with others in the workplace and likely make it difficult to accept and respond to negative feedback.” Additionally, her difficulty with concentration would make it difficult to remain on-task with assigned responsibilities. Of note, the VA medical opinions above highlight the presence of symptomatology the Veteran has consistently described and has been well-documented in the medical treatment records prior to May 3, 2017, in finding the Veteran is unemployable due to her service-connected disabilities. Given the above determination that the Veteran is, in fact, unemployable due to her service-connected disabilities, the Board finds that referral for extraschedular consideration for the period prior to May 3, 2017, is warranted. The matter is REMANDED for the following action: 1. Refer the matter of TDIU prior to May 3, 2017, to the appropriate department officials for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and her attorney. 3. Contact the Veteran and afford her the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and her attorney. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the nature and current severity of her service-connected left inferior pubic ramus stress fracture. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. Describe any functional limitation due to pain, weakened movement, excess fatigability, pain with use, or incoordination. Additional limitation of motion during flare-ups and following repetitive use due to limited motion, excess motion, fatigability, weakened motion, incoordination, or painful motion must also be noted. If the Veteran describes flare-ups of pain, the examiner must offer an opinion as to whether there would be additional limits on functional ability during flare-ups. All losses of function due to problems such as pain should be equated to additional degrees of limitation of flexion and extension beyond that shown clinically. Should the examiner state that he or she is unable to offer such an opinion without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner is directed to do all that reasonably can be done to become informed before such a conclusion, to include ascertaining adequate information-i.e. frequency, duration, characteristics, severity, or functional loss-regarding her flares by alternative means. The examiner must fully address the evidence of record, to include the Veteran’s statements regarding chronic pain and the October 2009 physician’s statement suggesting the severity of pain during flare-ups is “best described as ankylosis.” 5. Notify the Veteran that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Kalolwala, Associate Counsel