Citation Nr: 1807847 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 14-38 443A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an evaluation in excess of 60 percent for post-operative disk and fusion of the lumbar spine with degenerative changes. 2. Entitlement to a compensable evaluation for residuals of a left great toe injury with nail deformity. 3. Entitlement to a compensable evaluation for migraine headaches. 4. Whether new and material evidence has been received to reopen a claim to entitlement to service connection for depression with anxiety (previously addressed as adjustment disorder with mixed anxiety and depressed mood). 5. Entitlement to service connection for depression with anxiety (previously addressed as adjustment disorder with mixed anxiety and depressed mood). 6. Entitlement to a total disability rating for compensation based upon individual unemployability (TDIU). REPRESENTATION Appellant represented by: J. Michael Woods, Attorney ATTORNEY FOR THE BOARD A. Daniels, Associate Counsel INTRODUCTION The Veteran had active service from April 1998 to November 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The issue of entitlement to service connection for adjustment disorder with mixed anxiety and depressed mood (claimed as depression and bipolar disorder) was denied in a January 2001 rating decision. The Veteran did not file a notice of disagreement, and that decision became final. In November 2010, the Veteran filed a claim for, amongst other disabilities, service connection for depression with anxiety. The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Service connection for an adjustment disorder with mixed anxiety and depressed mood (claimed as depression and bipolar disorder) was denied in a January 2001 rating decision in part on the basis that no psychiatric condition was diagnosed. 2. The Veteran did not file a notice of disagreement for the January 2001 rating decision, and it became final. 3. The Veteran filed a new claim in November 2010 for, amongst other disabilities, service connection for depression with anxiety. 4. The RO denied service connection for depression with anxiety in December 2010 on the basis that the new evidence received was not new and material, and that therefore, the claim had not been successfully reopened. 5. The evidence supports a finding that the Veteran has a current diagnosis of depression that is related to service. 6. Prior to March 24, 2016, the Veteran's headaches are shown to be manifested by characteristic prostrating attacks occurring on an overage once a month over the last several months. 7. Beginning March 24, 2016, The Veteran's headaches are shown to be manifested by very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 8. The evidence of record indicates that the Veteran does not have unfavorable ankylosis of the entire spine. 9. The Veteran's residuals of a left great toe injury with nail deformity have not been productive of moderate symptoms. CONCLUSIONS OF LAW 1. New and material evidence has been received, and the Veteran's claim for service connection for depression with anxiety is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 2. The criteria for the establishment of service connection for depression with anxiety (previously addressed as adjustment disorder with mixed anxiety and depressed mood), have been met. 38 U.S.C. §§ 1101, 1110, 1154, 5102, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 3. The criteria for a 30 percent, but not greater, disability rating for headaches, prior to March 24, 2016, have been met . 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). 4. The criteria for a 50 percent, but not greater, disability rating for headaches, beginning March 24, 2016, have been met . 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8100 (2017). 5. The criteria for a rating in excess of 60 percent for service-connected post-operative disk and fusion of the lumbar spine with degenerative changes, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.7, 4.71a, Diagnostic Code 5242 (2017). 6. The criteria for a compensable rating for residuals of a left great toe injury with nail deformity have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.71a, Diagnostic Code 5284 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Proper notice from VA must inform the appellant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the veteran is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). Such notice must advise that a disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the claim. Id.; 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.159, 3.326 (2017); see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board finds that any defect with regard to the timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication. Moreover, the appellant had a meaningful opportunity to participate effectively in the processing of the claim decided herein with an adjudication of the claim by the RO subsequent to receipt of the required notice. The record does not show prejudice to the appellant and the Board finds that any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Specifically, the Veteran was notified in a letter dated in February 2011. The Veteran has neither alleged nor demonstrated any prejudice with regard to the content or timing of the notice provided. Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (burden of showing that an error is harmful, or prejudicial, falls upon the party attacking the agency's determination); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the adjudication in the October 2014 statement of the case. Overton v. Nicholson, 20 Vet. App. 427 (2006) (veteran afforded a meaningful opportunity to participate effectively in adjudication of claim, and therefore notice error was harmless). The Board also finds that the duty to assist requirements have been fulfilled. All relevant, identified, and available evidence has been obtained, and VA has notified the appellant of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. VA has obtained examinations with respect to the claims decided herein. Thus, the Board finds that VA has satisfied the duty to assist provisions of law. New and Material Evidence Service connection for an adjustment disorder with mixed anxiety and depressed mood (claimed as depression and bipolar disorder) was initially denied in a January 2001 rating decision. A VA examination found that the criteria for depression, bipolar disorder, or dysthymic disorder were not present. In the absence of evidence of a chronic condition manifested by persistent objective findings over a period of at least six months, the RO concluded that service connection was not warranted. A claim which has been finally denied may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c) (2012). The exception to this rule is 38 U.S.C. § 5108 (2012), which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510, 512-13 (1992). The evidence received since the January 2001 decision includes an October 2012 VA examination that notes a current diagnosis of depression, not otherwise specified (NOS). The evidence is new as it was not previously considered and material as it pertains to an unestablished fact of the claim, i.e., evidence of a current psychiatric disorder; therefore, raising a reasonable possibility of substantiating the claim. See Shade v. Shinseki, 24 Vet. App. 110 (2010). New and material evidence having been submitted, reopening of the previously denied claim is appropriate. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). To establish service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 38 F3d 1163 (Fed. Cir. 2004). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 C.F.R. § 3.102. Depression The Veteran received a VA mental disorder examination in October 2012, and exhibited symptoms including depressed mood, anxiety, near continuous panic or depression, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. The examiner noted a diagnosis of depression NOS but did not, however, provide an opinion with regards to its etiology. The Veteran received a second VA mental disorder examination in November 2016 and the examiner noted that the Veteran's depression resulted in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood. Based on a review of the available evidence and the examination results, the examiner concluded that the Veteran depressive disorder more likely than not began in military service, has continued uninterrupted to the present and was aggravated by her service-connected lumbar spine and headache disabilities. The Board finds the November 2016 VA examination highly probative and concludes that service connection for depression is warranted. The examiner considered the Veteran's history and in-service experiences, and provided a thorough rationale for her conclusions. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b) (2017); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Increased Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified by the schedule are considered adequate to compensate veterans for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2016). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Headaches Under Diagnostic Code 8100, a 50 percent rating is appropriate with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a. A 30 percent rating is appropriate with characteristic prostrating attacks occurring on an average once a month over the last several months. Id. A 10 percent rating is appropriate with characteristic prostrating attacks average one in two months over the last several months. Id. A 0 percent rating is appropriate with less frequent attacks. Id. Evaluation Prior to March 24, 2016 The Veteran received a VA general medical examination in February 2011 and indicated that she experienced headaches approximately twice per week and they can involve her entire head with severe incapacitating pain if allowed to progress. If she intervened early with medication, however, she was able to control the pain to a reasonable degree. At that point, the Veteran can function until all of the pain subsides within a 48 hour period. If the pain was not controlled, the headaches were severe and incapacitating and could last for two days. Every six to eight weeks, the pain was so severe that she would need to go to the emergency room for controlling treatment. The Veteran also indicated that she was able to function at work if she intervened with her medication early. However, she left work fairly frequently due to her headaches. When the Veteran experienced the severe headaches, they were accompanied by vertigo and sensitivity to light, noise, and odors. The Veteran would be incapacitated and lay quietly in a dark room until the headaches were controlled. The Veteran submitted a statement in August 2011 and indicated that her headaches were getting worse. She said they interfered with her abilities to work, and she had been fighting one every week for the past month. They lingered for two to three days, and the medication made it difficult to concentrate when working. The Board finds this examination and the Veteran's statements credible and highly probative of her headache disability prior to March 24, 2016. The Veteran is competent to be able to report the symptoms she experienced because they are within the knowledge and personal observations of a lay witness. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The evidence indicates that the Veteran experienced characteristic prostrating attacks on average once a month over the last several months. The Board notes that the February 2011 examiner diagnosed the Veteran with non-prostrating migraines. However, the evidence indicates that the pain reduced the Veteran to extreme physical weakness; she would be incapacitated and had to lie in a dark room, or sometimes had to visit the emergency room. Therefore, a 30 percent evaluation prior to March 24, 2016 is warranted. An evaluation in excess of 30 percent for this time period is not warranted because the Veteran's headaches were not productive of severe economic adaptability. Evaluation Beginning March 24, 2016 The Veteran received a VA headaches examination on March 24, 2016, and indicated that she experienced constant head pain that was localized to one side of the head. She had headaches three to four times per week, the pain would last three hours to three days, and she had nausea, sensitivity to light and sound, and changes in vision. The Veteran reported that she would miss several days of work and required frequent unscheduled breaks throughout the day due to her headaches. Furthermore, when the headaches occurred, she had to lie down in a dark room with a warm compress to try and get them to subside. Entitlement to the maximum schedular evaluation of 50 percent disabling, beginning March 24, 2016, the date of the most recent VA examination, is warranted. As discussed previously, the Veteran is competent to report the symptoms she experienced because they are within the knowledge and personal observations of a lay witness. See Barr, 21 Vet. App. 303, 307 (2007). Although the term "severe economic inadaptability" is not defined in the regulation, the Board finds that the nature and frequency of the headaches described by the Veteran and the March 2017 VA examination would approximate this definition. Severe economic inadaptability does not mean a claimant is completely unable to work, and VA conceded that the phrase "productive of severe economic inadaptability" in Diagnostic Code 8100 should be construed as either "producing" or "capable of producing" severe economic inadaptability. Pierce v. Principi, 18 Vet. App. 400 (2004). Here, the Board finds that the evidence supports a finding that the Veteran's headaches more nearly approximate the criteria for a 50 percent rating under Diagnostic Code 8100 beginning March 24, 2016. Although the examiner did not specifically opine whether the condition was productive of severe economic inadaptability, he did state that she would be unable to maintain substantially gainful employment due to her headaches. Resolving reasonable doubt in favor of the Veteran, an increased evaluation to the maximum schedular 50 percent rating for the Veteran's migraine headaches under Diagnostic Code 8100, beginning March 24, 2016, is warranted. 38 U.S.C. § 5107(b). Lumbar Spine The Veteran's post-operative disk and fusion of the lumbar spine with degenerative changes is currently rated as 60 percent disabling. She would need unfavorable ankylosis of the entire spine to qualify for a disability rating of 100 percent, the next highest available rating. The Veteran received a VA examination in February 2011 and the examiner did not note any ankylosis. While the Board notes the amount of time since the last VA examination, the Veteran has not indicated that her back disability has worsened since the last examination. As such, the Board finds that a new examination is not warranted. In light of the lack of ankylosis at the February 2011 VA examination, the Board finds that a rating in excess of 60 percent for post-operative disk and fusion of the lumbar spine with degenerative changes is not warranted. The Board recognizes that, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that VA medical examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. However, in this case, range of motion is irrelevant because a rating in excess of 60 percent for a low back disability requires unfavorable ankylosis. Accordingly, a remand in order to comply with Correia is not warranted. In addition, since the Veteran is in receipt of the maximum rating for limited motion under the applicable criteria, consideration of 38 C.F.R. § 4.40 and § 4.45, and the accompanying case law, are not for application. Johnston v. Brown, 10 Vet. App. 80 (1997). Service-Connected Left Great Toe The Veteran's residuals of a left great toe injury with nail deformity is current rated as zero percent disabling. She received a VA examination in February 2011, and the examiner found that the Veteran had a successful toenail ablation procedure. There was no evidence of any residual nail formation. The left great toenail bed was fully healed, and there was no evidence of any inflammation or drainage. Furthremore, the ranges of motion were normal without painful limitation. As a result of the examination, the examiner concluded that the Veteran had a normal left great toenail. While the Board notes the amount of time since the last VA examination, the Veteran has not indicated that her left disability has worsened since the last examination. As such, the Board finds that a new examination is not warranted. Since the Veteran's left great toenail has been found to be normal, she is not entitled to a compensable evaluation. A 10 percent evaluation is not warranted because her foot injury is not moderate, a 20 percent evaluation is not warranted because it is not moderately severe, and a 30 percent evaluation is not warranted because it is not severe. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for depression with anxiety (previously addressed as adjustment disorder with mixed anxiety and depressed mood) is reopened. Service connection for depression with anxiety is granted. Entitlement to a disability rating of 30 percent for the period prior to March 24, 2016, for migraine headaches, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating of 50 percent for the period beginning March 24, 2016, for migraine headaches, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 60 percent for post-operative disk and fusion of the lumbar spine with degenerative changes is denied. Entitlement to a compensable evaluation for residuals of a left great toe injury with nail deformity is denied. REMAND Regarding the Veteran's claim of entitlement to TDIU, the Board finds that it is inextricably intertwined with the depression issue that has been service connected by this decision, and thus the Board will defer consideration of the appeal with regard to entitlement to TDIU until the RO has had an opportunity to rate this newly service-connected disability. See Harris v. Derwinski, 2 Vet. App. 180, 183 (1991). Accordingly, the case is REMANDED for the following action: Upon completion of any additional development following the rating assignment for the newly service-connected depression, readjudicate the claim for TDIU. If the benefit is not granted, issue the Veteran and his representative a supplement statement of the case (SSOC) and return the matter to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Michael J. Skaltsounis Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs