Citation Nr: 18123794 Decision Date: 08/07/18 Archive Date: 08/03/18 DOCKET NO. 13-06 248 DATE: August 7, 2018 ORDER Entitlement to a compensable rating for a fractured left second rib is denied. Entitlement to a rating in excess of 10 percent for a right eye disability is denied. Entitlement to a rating in excess of 30 percent for cerebellar contusion with headaches is denied. Entitlement to a rating in excess of 10 percent for right supraorbital neuropathy is denied. Entitlement to a rating in excess of 10 percent for right upper extremity radiculopathy is denied. Entitlement to a rating of 20 percent, but no higher, for left upper extremity radiculopathy is granted from November 28, 2016. Entitlement to a 70 percent rating, but no higher, for depression is granted. Entitlement to TDIU is granted. REMANDED Entitlement to a rating in excess of 30 percent for a cervical spine disability is remanded. Entitlement to a rating in excess of 10 percent for a lumbosacral disability is remanded. FINDINGS OF FACT 1. The Veteran’s left second rib has not been removed, and there is no functional impairment associated with his left rib disability. 2. The Veteran has not had concentric contraction of the visual field of the right eye with a remaining field of 15 degrees or fewer. His corrected visual acuity of the right eye was 20/40 and visual field defect (expressed as a level of visual acuity) was 20/70. 3. The Veteran has not had very frequent completely prostrating and prolonged migraine attacks productive of severe economic inadaptability. 4. The Veteran has not had severe incomplete or complete paralysis of the trigeminal nerve. 5. The Veteran has not had at least mild incomplete paralysis of the right upper radicular group or moderate incomplete paralysis of the right hand. 6. The Veteran has had mild incomplete paralysis of the left upper radicular group since November 28, 2016, but has not had at least moderate paralysis of the left upper radicular group, or severe incomplete or complete paralysis of the left hand. 7. The Veteran’s depression has produced social and occupational impairment with deficiencies in most areas, but has not resulted in total social and occupational impairment. 8. The Veteran’s service-connected disabilities have produced total occupational impairment. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for fractured left second rib have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. § 4.72, Diagnostic Code 5297 (2017). 2. The criteria for a rating in excess of 10 percent for a right eye disability have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.79, Diagnostic Code 6066, 6080. 3. The criteria for a rating in excess of 30 percent for cerebellar contusion with headaches have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. 4. The criteria for a rating in excess of 10 percent for right supraorbital neuropathy have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8205. 5. The criteria for a rating in excess of 10 percent for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Codes 8510, 8515. 6. The criteria for a rating of 20 percent, but no higher, for left upper extremity radiculopathy have been met from November 28, 2016. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8510, 8515. 7. The criteria for a 70 percent rating, but no higher, for depression have been met. 38 U.S.C. §§ 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434. 8. The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran’s attorney contends that the Veteran’s depression has worsened since his last VA examination in June 2010 and requests that he be afforded a new examination if appropriate. See November 2017 Correspondence. Although there has been some change in the Veteran’s symptoms since his last examination, such as the presence of suicidal ideation, the Board finds that there is sufficient evidence of record to rate his psychiatric disability without further delay. This will be explained in greater detail below. It is also noted VA treatment records were added to the file following the last RO review in an August 2017 supplemental statement of the case. However, the Veteran’s attorney has waived RO consideration of that evidence. Neither the Veteran nor his representative has raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability ratings are determined by comparing a Veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran was involved in a motorcycle accident during service in which he was struck by another vehicle. The accident resulted in a number of injuries to the Veteran’s body, including his neck, back, and head. Service connection has been awarded for a number of residual disabilities including, traumatic brain injury (TBI) residuals such as cerebellar contusion with a headaches and a history of amnesia and post-traumatic right supraorbital neuropathy, spine disabilities such as traumatic injury of the cervical spine with chronic strain and associated neurological impairment of the bilateral upper extremities, and traumatic injury of the lumbosacral spine with strain, a right eye disability manifested by a superior and nasal visual field defect with glaucoma, a fractured left second rib, and an associated depressive disorder. Diagnostic Code 8045 addresses TBI residuals including cognitive impairment, subjective symptoms, emotional/behavioral dysfunction, and physical dysfunction. Cognitive impairment is rated under Diagnostic Code 8045 unless it overlaps with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. Subjective symptoms with a distinct diagnosis are separately evaluated under another diagnostic code. Emotional/behavioral dysfunction is evaluated under § 4.130 when there is a diagnosis of a mental disorder. Physical dysfunction is evaluated under an appropriate diagnostic code. 1. Entitlement to a compensable rating for a fractured left second rib. The Veteran’s left rib disability is rated under Diagnostic Codes 5299-5297. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Under Diagnostic Code 5297 for removal of ribs, a 50 percent rating requires removal of more than six ribs. A 40 percent rating requires removal of five or six ribs. A 30 percent rating requires removal of three or four ribs. A 20 percent rating requires removal of two ribs. A 10 percent rating requires removal of one rib or resection of two or more ribs without regeneration. The Veteran is not entitled to a compensable rating for his left rib disability. The November 2016 VA examination report indicates that the left rib fracture healed, and the evidence indicates no residuals or functional impairment. As the Veteran has not had at least one rib removed, he is not entitled to a compensable rating. The Board has considered whether a higher rating is warranted under any other diagnostic code, but determined that none are applicable. 2. Entitlement to a rating in excess of 10 percent for a right eye disability. The Veteran’s right eye disability is rated under Diagnostic Codes 6013-6080. Under Diagnostic Code 6080 for visual field defects, a 30 percent rating is assigned for unilateral concentric contraction of the visual field with a remaining field of 5 degrees. A 20 percent rating is assigned for unilateral concentric contraction of the visual field with a remaining field of 6 to 15 degrees. The Veteran is not entitled to a rating in excess of 10 percent for his right eye disability. Although he was diagnosed with loss of the right inferior temporal visual field, he did not have a remaining field of vision of 15 degrees or fewer, precluding a higher rating under Diagnostic Code 6080. The Board has considered whether a higher rating is warranted based on decreased visual acuity under Diagnostic Code 6066 or a combination of visual field defect and decreased visual acuity. However, the Veteran’s corrected distance was 20/40 in the service-connected right eye and his visual field defect (expressed as a level of visual acuity) was 20/70, thereby precluding a rating in excess of 10 percent on the basis of decreased visual acuity or a combination of visual field defect and decreased visual activity. 3. Entitlement to a rating in excess of 30 percent for cerebellar contusion with headaches. The Veteran’s headache disability is rated under Diagnostic Codes 8045-8100. Under Diagnostic Code 8100 for migraine, a 50 percent rating requires very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The Veteran is not entitled to a 50 percent rating for his headache disability. The April 2010 VA examination report indicates headaches three times a week with no treatment. Although the November 2016 VA examination report notes very frequent prostrating and prolonged attacks productive of migraine headache pain, the examiner remarked that the migraines did not affect the Veteran’s ability to perform physical and sedentary activities of employment. As such, the evidence fails to show severe economic inadaptability, thereby precluding a 50 percent rating. The Board has considered whether a higher rating is warranted under any other diagnostic code, but determined that none are applicable. 4. Entitlement to a rating in excess of 10 percent for right supraorbital neuropathy. The Veteran’s right supraorbital neuropathy is rated under Diagnostic Codes 8045-8205. Under Diagnostic Code 8205 for paralysis of the fifth cranial nerve, a 50 percent rating requires complete paralysis of the trigeminal nerve. A 30 percent rating requires severe incomplete paralysis of the trigeminal nerve. The Veteran is not entitled to a rating in excess of 10 percent for his right supraorbital neuropathy. The November 2016 VA examination report indicates only moderate incomplete paralysis of the trigeminal nerve, which does not meet the level of severity required for a higher rating. The Board has considered whether a higher rating is warranted under any other diagnostic code, but determined that none are applicable. 5. Entitlement to a rating in excess of 10 percent for right upper extremity radiculopathy. The Veteran’s right upper extremity radiculopathy is rated under Diagnostic Codes 8599-8515. Under Diagnostic Code 8515 for paralysis of the median nerve, for the major side, a 70 percent rating requires complete paralysis; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. A 50 percent rating requires severe incomplete paralysis. A 30 percent rating requires moderate incomplete paralysis. Diagnostic Code 8510 addresses paralysis of the upper radicular group. For the major side, a 70 percent rating requires complete paralysis; all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected. A 50 percent rating requires severe incomplete paralysis. A 40 percent rating requires moderate incomplete paralysis. A 20 percent rating requires mild incomplete paralysis. The Veteran is not entitled to a rating in excess of 10 percent for right upper extremity radiculopathy. Despite notations of mild numbness and moderate pain, the evidence does not show at least moderate incomplete paralysis of the right hand, thereby precluding a higher rating. The Board has considered whether a higher rating is warranted under any other diagnostic code, including Diagnostic Code 8510. However, the November 2016 examination report notes a normal right upper radicular group, precluding a higher rating under Diagnostic Code 8510 as well. 6. Entitlement to a rating in excess of 10 percent for left upper extremity radiculopathy. The Veteran’s left upper extremity radiculopathy is rated under Diagnostic Codes 8599-8515. Under Diagnostic Code 8515, for the minor side, a 60 percent rating requires complete paralysis; the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. A 40 percent rating requires incomplete severe paralysis. A 20 percent rating requires moderate incomplete paralysis. The Veteran is entitled to a rating of 20 percent, but no higher, for left upper extremity radiculopathy from November 28, 2016. The November 2016 examination report notes mild incomplete paralysis of the left upper radicular group. Under Diagnostic Code 8510, such is sufficient to meet the criteria for a 20 percent rating. Nevertheless, a rating in excess of 20 percent is not warranted, as the evidence does not show at least moderate incomplete paralysis of the left upper radicular group. Neither does the evidence show mild incomplete paralysis of the left upper radicular group prior to November 28, 2016, which precludes application of the increased rating to the entire appeal period. The Board has also considered whether a higher rating is warranted under Diagnostic Code 8515, but finds no evidence of at least severe incomplete paralysis of the left hand, thereby precluding a higher rating under that code. 7. Entitlement to a rating in excess of 50 percent for depression. The Veteran’s depression is rated under the General Rating Formula for Mental Disorders. A 70 percent rating requires occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, 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 the inability to establish and maintain effective relationships. A 100 percent rating requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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 Veteran is entitled to a rating of 70 percent, but no higher, for his depression. The record shows deficiencies in most areas due to such symptoms as suicidal ideation, near-continuous depression affecting the ability to function independently appropriately and effectively, impaired impulse control, and difficulty in adapting to stressful circumstances. The Veteran had a girlfriend and was married during the appeal period. Both relationships ended with incidents of threatened violence due to the Veteran’s impaired impulse control. The Veteran’s former girlfriend and spouse both placed restraining orders against him, and his son moved to a new city due to his behavior. These incidents are ample evidence of a deficiency in family relations. Throughout the appeal period, the Veteran has been noted to have a depressed mood. His VA treatment records show that he frequently missed appointments and failed to complete treatment. He has changed residences multiple times due to his unstable mood and unpredictable behavior, variously living with family members, roommates, and being homeless. He was also hospitalized in August 2017 due to suicidal ideation. The evidence therefore establishes a deficiency in mood with suicidal ideation and near-continuous depression affecting the ability to function independently, appropriately and effectively. The Veteran has not been employed since 2006. At the June 2010 VA examination, he was noted to have memory and cognitive problems, as well as limited stress-coping skills. Given his history of interpersonal conflict and noted limitations, it appears unlikely that the Veteran would be fully functional in a work environment. Therefore, deficiency in work is also established. Taken together, the evidence shows that the Veteran has occupational and social impairment with deficiencies in most areas. The Board notes the June 2010 examiner’s opinion, which did not find deficiencies in most areas. Regardless, the Board finds that the totality of the evidence supports a 70 percent rating. The Veteran is not entitled to a 100 percent rating for depression, however, as he has not had total social impairment. At the June 2010 examination, he was noted to maintain contact with his family and close friends. In January 2012, he was living with one of his sons and had an “off and on” relationship with a woman. In 2014, he was married and living with his former spouse. Following his divorce, the Veteran remained active in his church community. In May 2017, he reported having a close relationship with his sons with frequent contact and support. The preceding shows that the Veteran has not been totally socially impaired at any time. The Board notes the argument that the Veteran is entitled to a 100 percent rating due to grossly inappropriate behavior, persistent danger of hurting others, memory problems, and other symptoms. See November 2017 Correspondence. However, the existence of particular symptoms, in itself, does not warrant a higher rating; rather, the symptoms must produce the contemplated impairment. The Veteran’s symptoms have simply not produced total social impairment at any time during the appeal period, thereby precluding a 100 percent rating for depression. The Board has also considered whether the Veteran may be entitled to a higher rating under Diagnostic Code 8045 for residuals of his in-service TBI. His symptoms of cognitive impairment and emotional/behavioral dysfunction have been evaluated as part of his comorbid psychiatric disability. His subjective symptoms and physical dysfunction have been separately evaluated and are reflected in evaluations for disabilities discussed in this decision. Review of the medical evidence does not show symptoms for which the Veteran has not been compensated. A higher evaluation under Diagnostic Code 8045 is therefore not warranted. 8. Entitlement to TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, to qualify for individual unemployability, there must 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). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In evaluating a veteran’s employability, consideration may be given to his or her level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination 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). Indeed, the focus of the examiner is not on whether a Veteran is unemployable due to his service-connected disabilities, but the functional impairment caused solely by his service-connected disabilities. The Veteran is service connected for depression rated 50 percent disabling; a cervical spine disability rated 30 percent disabling; a headache disability rated 30 percent disabling; supraorbital neuropathy rated 10 percent disabling; a right eye disability rated 10 percent disabling; left and right upper extremity radiculopathies rated 10 percent disabling respectively; and a noncompensable fracture left rib. By this decision, the Veteran’s rating for depression is increased to 70 percent and his left upper extremity radiculopathy is increased to 20 percent effective November 28, 2016. The Veteran’s combined rating has been 90 percent throughout the appeal period. He meets the schedular TDIU and criteria for eligibility under 38 C.F.R. § 4.16(a). The Veteran contends that he has been unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. He has a college degree and was employed as a dance teacher and martial arts instructor until 2006. He claims that he stopped working due to disability. Granting him the benefit of the doubt, the Board finds that the Veteran is entitled to TDIU. As previously discussed, the Veteran’s depression results in occupational impairment with difficulty adapting to stressful circumstances and interpersonal problems. The Veteran has had relatively frequent headaches, and his neck disability creates difficulty with repetitive gripping and lifting. He has reported pain in the upper extremities and has limited vision in the right eye. Given the physical nature of his prior employment as a fitness instructor and the need to interact with others regularly as part of this employment, his physical and mental limitations would likely preclude him from any form of substantially gainful employment consistent with his education and experience. The Board notes the April 2010 VA medical opinion, which found that the Veteran was capable of gainful employment. However, the opinion appears to focus exclusively on the Veteran’s physical limitations and does not account for his service-connected psychiatric disability. Therefore, it is entitled to little weight. As such, TDIU is warranted. REASONS FOR REMAND Entitlement to a rating in excess of 30 percent for a cervical spine disability and a rating in excess of 10 percent for a lumbosacral disability are remanded. The Veteran underwent VA neck and back examinations in November 2016. No imaging was conducted at the examinations, and no diagnoses of arthritis were made. In March 2017 correspondence, the Veteran reported that he had neck and back arthritis. A notation in the medical treatment records also indicates neck arthritis. See July 2017 CAPRI Records. As it appears that the November 2016 examinations have not captured the severity of the Veteran’s neck and back disabilities, he should be afforded new examinations with appropriate testing to determine whether he has arthritis as a progression of his current disabilities. The matters are REMANDED for the following action: Schedule the Veteran for a VA examination, by an appropriate medical specialist, to evaluate the current severity of his neck and back disabilities. All indicated studies should be completed, including range of motion testing. All findings must be fully reported. Appropriate testing should be conducted to determine the presence of arthritis. a. The report should discuss the examiner’s objective evaluation for any weakened movement, excess fatigability with use, incoordination, and painful motion. b. The clinician must address range of motion loss specifically due to pain and any functional loss during flare-ups. The clinician is to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the joint is used repeatedly over a period of time. These determinations should, if feasible, be portrayed in terms of degrees of additional range of motion loss due to pain on use or during flare-ups. c. Testing of the range of motion must include testing in active motion and passive motion. The examiner should also discuss weight-bearing and nonweight-bearing ranges. If such are not applicable, the examiner should state such along with an explanation. d. If it is not feasible to provide the degrees in which there is an additional loss in range of motion during flare-ups or repeated use over time or any range of motion testing, then the clinician must provide an adequate explanation as to why. e. If cervical spine arthritis is diagnosed, is it at least as likely as not (50 percent probability or greater) that the arthritis is a progression of the Veteran’s current disability? f. If back arthritis is diagnosed, is it at least as likely as not (50 percent probability or greater) that the arthritis is a progression of the Veteran’s current disability? If the examiner determines that arthritis is unrelated to the Veteran’s service-connected disabilities, the examiner should distinguish which symptoms/functional effects are attributable to the Veteran’s service-connected disabilities and non-service-connected arthritis respectively. If the examiner is unable to do so, the examiner should state such along with an explanation. Rationale for the requested opinion shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, provide an explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or the limits of current medical knowledge with respect to the question. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Alhinnawi, Associate Counsel