Citation Nr: 18160924 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 16-46 752 DATE: December 28, 2018 ORDER Entitlement to a compensable rating for scars associated with lumbar spine surgeries is denied. Entitlement to a rating in excess of 70 percent for depressive disorder for the period prior to August 9, 2017 is denied. Entitlement to a rating of 100 percent for depressive disorder for the period starting August 9, 2017 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) for the period prior to August 9, 2017 is granted. Entitlement to an effective date earlier than March 4, 2015 for the award of service connection for depressive disorder is denied. REMANDED Entitlement to a rating in excess of 40 percent for status post bilateral posterior spinal fusion, L4 to sacrum, is remanded. Entitlement to an effective date earlier than July 1, 2000 for scars associated with lumbar spine surgeries is remanded. Entitlement to special monthly compensation (SMC) for the need for aid and attendance/housebound status is remanded. Entitlement to a temporary total rating for convalescence prior to January 25, 2016 and after August 1, 2016 for lumbar spine surgery is remanded. FINDINGS OF FACT 1. The Veteran’s scars from his lumbar spine surgeries are well-healed and neither painful nor unstable. 2. Prior to August 9, 2017, the Veteran’s depressive disorder was characterized by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. For the period starting August 9, 2017, the Veteran’s depressive disorder is characterized by total occupational and social impairment. 4. The Veteran was diagnosed with depressive disorder secondary to his service-connected back disability on February 27, 2015. His claim for service connection for depressive disorder was received on March 4, 2015. 5. Prior to August 9, 2017, the Veteran was service-connected with several disabilities collectively rated at 90 percent, including depressive disorder rated at 70 percent. 6. Prior to August 9, 2017, the Veteran’s service-connected disabilities precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for scars associated with lumbar spine surgeries have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.27, 4.118, Diagnostic Codes 7805 (2017). 2. For the period prior to August 9, 2017, the criteria for a rating in excess of 70 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9434 (2017). 3. For the period starting August 9, 2017, the criteria for a rating of 100 percent for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9434 (2017). 4. The criteria for an earlier effective date for the award of service connection for depressive disorder have not been met. 38 U.S.C. § 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155, 3.400 (2017). 5. For the period prior to August 9, 2017, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to June 2000. He received the Navy and Marine Corps Achievement Medal; Joint Meritorious Unit Award; Navy Unit Commendation; Meritorious Unit Commendation; Navy “E” Ribbon; Good Conduct Medal; Navy Expeditionary Medal; National Defense Service Medal; Armed Forces Expeditionary Medal; Southwest Asia Service Medal with two bronze stars; Sea Service Deployment Ribbon; Kuwait Liberation Medal; and, U.S. Coast Guard Special Operations Service Ribbon. The issue of secondary service connection for lower extremity radiculopathy has been raised by the record in treatment record. See March 2016 CAPRI, p. 46. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Increased Rating for Scars Associated with Lumbar Spine Surgeries The Veteran’s scars associated with lumbar spine surgeries have been rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code (DC) 7805. DC 7805 calls for evaluation of scars under DC 7800, 7801, 7802, or 7804. The Veteran’s scars are linear and most appropriately rated based on the criteria found at DC 7804. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and, a 30 percent rating is assigned for five or more scars that are unstable or painful. If one or more scars are both unstable and painful, an additional 10 percent should be added to the rating. See 38 C.F.R. § 4.118, DC 7804, Note (2). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). In connection with his increased rating claim for his back disability, the Veteran underwent a VA examination in June 2016. The Veteran’s scars measured 12 centimeters by 0.1 centimeters and 6 centimeters by 0.1 centimeters. The examiner observed that both scars were well-healed, stable, and non-tender. There are no treatment records or other evidence relating to the Veteran’s surgical scars. The Board finds that the evidence preponderates against a finding of entitlement to a compensable rating for scars associated with lumbar spine surgeries. To receive a compensable evaluation, at least one of the Veteran’s scars must be painful or unstable. The evidence fails to demonstrate that the Veteran’s scars are either painful or unstable. Instead, the evidence shows that the Veteran’s scars are well-healed, stable and non-tender. Accordingly, a compensable rating for scars associated with lumbar spine surgeries is not warranted. Increased Rating for Depressive Disorder The Veteran’s depressive disorder has been rated under the provisions of 38 C.F.R. § 4.130, DC 9434. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability 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 Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In this case, the Veteran’s disability has significantly changed over the course of the period that remains on appeal; thus, staged ratings have been assigned accordingly. The Veteran contends that he is entitled to an increased rating for his depressive disorder. For the period prior to August 9, 2017, the Veteran’s disability was characterized by occupational and social impairment with deficiencies in most areas. The Veteran underwent an examination in July 2015. The Veteran’s symptoms included a depressed mood; anxiety; near-continuous panic or depression; chronic sleep impairment; flattened affect; disturbance of motivation and mood; difficulty in adapting to stressful circumstances; and, an intermittent inability to perform activities of daily living. On examination, the Veteran was alert and oriented and his thought processes were linear and coherent. The examiner noted that he was not distractible and his spontaneous speech was fluent and grammatic. His recent and remote memory appeared to be within normal limits and there was no suicidal or homicidal ideation or overt psychosis observed. In a February 2015 treatment note, a private psychologist indicated that the Veteran experienced insomnia, feelings of hopelessness, low self-esteem, and impaired focus and concentration. See March 2015 Private Treatment Records, pp. 1-2. In a March 2015 VA treatment note, the Veteran reported little interest or pleasure in doing things and feeling down, depressed or hopeless nearly every day. See June 2015 CAPRI, p. 17. The Veteran also submitted a July 2017 buddy statement from his brother. The Veteran’s brother reported that the Veteran had trouble with his memory, impaired concentration or focus, no interest in interacting with others, and difficulty handling stressful circumstances. See December 2017 VA Examination, p. 33. The Veteran’s brother also noted that the Veteran tended to neglect his appearance but maintained good hygiene. For the period prior to August 9, 2017, the Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 70 percent. To warrant a higher rating, the evidence must show 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 to time or place; memory loss for names of close relatives, own occupation, or own name. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While the evidence demonstrates that the Veteran exhibited an intermittent inability to perform activities of daily living, the evidence does not show that these symptoms were of the severity, frequency, and duration contemplated by the 100 percent rating. The Veteran’s disability was largely characterized by sleep impairment, near-continuous depression, difficulty in adapting to stressful circumstances, impaired concentration, and disturbances of motivation and mood. The severity of these symptoms most closely approximates those contemplated by a 70 percent disability rating. Accordingly, the Board concludes that a rating in excess of 70 percent for depressive disorder for the period prior to August 9, 2017 is not warranted. For the period starting August 9, 2017, the evidence demonstrates that the Veteran’s depressive disorder is characterized by total occupational and social impairment. The Veteran submitted an examination conducted by a private clinician in December 2017. His symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; impairment of short-term and long-term memory; flattened affect; difficulty in understanding complex commands; gross impairment in thought processes; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; impaired impulse control; unprovoked irritability with verbal aggression; neglect of personal appearance and hygiene; and, intermittent inability to perform activities of daily living. See December 2017 VA Examination, pp. 40, 42. In a buddy statement dated August 2017, the Veteran’s spouse reported similar symptoms. See December 2017 VA Examination, p. 35. She indicated that she had to remind the Veteran to take his medications, shower and put on clean clothes because he would go days without showering. She further noted that she attends his medical appointments because he forgets to ask certain questions or forgets to tell her what the doctor said. Moreover, she reported that the Veteran tends to say things that do not make sense and becomes frustrated when she asks him about what he has said. Finally, the Veteran’s spouse stated that he is short-tempered, overreacts and is easily overwhelmed, and she does all of the cooking and cleaning around the house. Affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s disability more closely approximates the picture contemplated by the 100 percent rating for the period starting August 9, 2017. The evidence shows that the Veteran suffers from total occupational and social impairment due to gross impairment in thought process, intermittent inability to perform activities of daily living, impaired impulse control, unprovoked episodes of verbal aggression, and near-continuous depression. Accordingly, the Board concludes that a rating of 100 percent for depressive disorder is warranted for the period starting August 9, 2017. Earlier Effective Date for the Award of Service Connection for Depressive Disorder In general, the effective date of an award of disability compensation, in conjunction with a grant of entitlement to service connection, shall be the day following separation from active service or the date entitlement arose if the claim is received within one year of separation from service; otherwise, the effective date shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). VA shall construe any communication or action from a Veteran indicating intent to apply for one or more benefits as an informal claim. For any informal claim received prior to March 24, 2015, VA is required to identify and act on such claims, provided such a claim identifies the benefit sought. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). VA is not required to anticipate any potential claim for a particular benefit where no intention to raise it was expressed. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (holding that before VA can adjudicate a claim for benefits, the claimant must submit a written document identifying the benefit and expressing some intent to seek it). Medical evidence alone cannot be an informal claim; there must be intent to apply for a benefit. Brannon, 12 Vet. App. at 35. VA’s possession of medical evidence showing a particular diagnosis or causal connection may not provide a basis for the assignment of an earlier effective date. The effective date for an award of service connection is not based on the earliest medical evidence demonstrating a causal connection, but on the filing date of the application upon which service connection was eventually awarded. Lalonde v. West, 12 Vet. App. 377, 382 (1999); see McGrath v. Gober, 14 Vet. App. 28 (2000). Here, the July 2015 rating decision granting service connection for depressive disorder assigned an effective date of March 4, 2015—the date of the Veteran’s claim for service connection for the condition. See March 2015 Application for Disability Compensation Benefits, p. 1. The earliest evidence showing a diagnosis of depressive disorder secondary to his service-connected disabilities is dated February 27, 2015. See March 2015 Private Treatment Records, pp. 1-2. The Veteran has not set forth a basis for his claim for an earlier effective date for service connection for depressive disorder. However, the evidence does not show that he submitted any communication that could be construed as a formal or informal claim for service connection for depressive disorder prior to March 4, 2015. See Brannon, 12 Vet. App. at 35. The preponderance of the evidence is against the assignment of an earlier effective date for the award of service connection for depressive disorder. The Veteran was diagnosed with the condition in February 2015 and submitted his claim for service connection in March 2015. As the date of submission of the claim is the later of the two dates used to determine effective dates, it is the appropriate effective date. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). Accordingly, the claim for an earlier effective date for the award of service connection for depressive disorder must be denied. TDIU Prior to August 9, 2017 Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period prior to August 9, 2017, the Veteran met the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he had two or more service-connected disabilities, with at least one disability ratable at 40 percent or more (i.e., depressive disorder), and had a combined disability rating of 90 percent. The remaining (and dispositive) question is whether the service-connected disabilities rendered the Veteran incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran last worked in 2016 and contends that his service-connected disabilities prevent him from securing or following substantially gainful employment. See December 2017 VA Examination, p. 73. The Veteran completed high school and one year of college, and his post-service career consists of work as an elevator inspector and power delivery technician. Turning to the impact of the Veteran’s service-connected disabilities prior to August 9, 2017, the Veteran was service-connected for depressive disorder, status post bilateral posterior spinal fusion, L4 to sacrum, bilateral plantar fasciitis, bilateral bursitis of the hips, external hemorrhoids, scars associated with lumbar spine surgeries, and pseudofolliculitis barbae. As noted above, the Veteran’s depressive disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, due to symptoms such as depressed mood; anxiety; near-continuous panic or depression; chronic sleep impairment; flattened affect; disturbance of motivation and mood; difficulty in adapting to stressful circumstances; and, an intermittent inability to perform activities of daily living. The Veteran’s back and hip disabilities limit his ability to stand, sit or walk longer than 10 to 15 minutes at a time. The Veteran is also unable to lift or carry more than 10 pounds consistently in an 8-hour work day. See December 2017 VA Examination, pp. 68-69. Further, the Veteran is prescribed narcotic pain medication for his back disability and this causes drowsiness and impaired focus. In a July 2017 statement, the Veteran’s friend and former coworker indicated that the Veteran struggled to perform the responsibilities of his last job. See December 2017 VA Examination, p. 32. Specifically, the Veteran had a hard time bending over and lifting heavy objects because of his back and hips, and his back gave him great pain from having to stand the majority of the work day. His friend indicated that 70 percent of the job responsibilities could not be done sitting down so the Veteran would sit and rest for a few minutes and then return to his tasks. Additionally, his friend commented that the Veteran was somewhat isolated at work because he was unable to keep up with the rest of the team. The Board finds that the impact of the Veteran’s depressive disorder, back disability and hip disability make it impossible for him to secure and maintain substantially gainful employment. As noted by the evidence of record, the Veteran suffers from chronic sleep impairment, problems with concentration and focus, difficulty adapting to stressful circumstances, and physical impairment caused by his back and hip disabilities. The Veteran’s employment history consists largely of work that would require him to perform physical work for sustained periods of time. Moreover, the Veteran has no additional specialized education, training, or other experience that suggests he may be able to secure gainful employment outside of his past work as an elevator inspector and power delivery technician, to include sedentary work. Many of the symptoms that impact the Veteran’s ability to successfully perform the work his past roles, such as difficulty standing, walking or sitting for prolonged periods of time, difficulty concentrating, chronic sleep impairment, and difficulty adapting to stressful circumstances, would impact the Veteran’s ability to successfully perform work in most occupational settings. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted for the period prior to August 9, 2017. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Increased Rating for Status Post Bilateral Posterior Spinal Fusion, L4 to Sacrum and Entitlement to a Temporary Total Rating for Convalescence Prior to January 25, 2016 and After August 1, 2016 for Lumbar Spine Surgery The Veteran underwent surgery in January 2016 for his back disability. A January 2016 note from his attending physician indicated that his dates of convalescence were from January 25, 2016 through June 30, 2017. See January 2016 Third Party Correspondence, p. 1. The Veteran has not submitted any medical records that pertain to his back disability since April 2016. At the time of the June 2016 examination, the Veteran was still on restricted activity. June 2016 VA Examination, p. 3. The evidence of record is unclear as to when the Veteran’s convalescence ended. Accordingly, the Veteran should be afforded an opportunity to submit any outstanding relevant treatment records that pertain to his back disability including those which demonstrate when his convalescence ended. Entitlement to an Earlier Effective Date for the Award of Service Connection for Scars Associated with Lumbar Spine Surgeries In the July 2016 notice of disagreement, the Veteran disagreed with the effective dates for the award of service connection for scars associated with lumbar spine surgeries. July 2016 NOD, p. 2. The AOJ never issued a statement of the case (SOC) for this claim. Accordingly, the Board takes jurisdiction over this claim for the sole purpose of remanding for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). Entitlement to SMC Based on the Need for Aid and Attendance/Housebound Status The issue of entitlement to SMC for aid and attendance/housebound status is inextricably intertwined with the issues of an increased rating for a back disability and entitlement to a temporary total rating for convalescence, and it would be premature to decide the former issue before there has been a final adjudication of the latter issues. See Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). As the issues of an increased rating for a back disability and entitlement to a temporary total rating for convalescence are being remanded, the issue of entitlement to SMC must also be remanded. The matters are REMANDED for the following action: 1. Provide the Veteran with an SOC concerning the earlier effective date claim for the award of service connection for scars associated with lumbar spine surgeries. The SOC must instruct the Veteran to file a substantive appeal in response to the SOC to complete the steps necessary to perfect his appeal of this claim to the Board. (Continued on the next page)   2. Provide the Veteran with the appropriate notification and release forms needed to obtain private treatment records related to his service-connected back disability. If such efforts are unsuccessful, provide the Veteran with an opportunity to secure and submit the records. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel