Citation Nr: 19190835 Decision Date: 12/03/19 Archive Date: 12/03/19 DOCKET NO. 16-01 905 DATE: December 3, 2019 ORDER Entitlement to service connection for a left shoulder strain is granted. Entitlement to an increased rating of 70 percent, but no higher, prior to August 27, 2018, for a depressive disorder is granted. Entitlement to an increased rating in excess of 70 percent, from August 27, 2018, for a depressive disorder is denied. REMANDED Entitlement to service connection for erectile dysfunction (ED) is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to an increased rating in excess of 20 percent for right shoulder dislocation with degenerative osteoarthritis is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s left shoulder strain is related to his service-connected right shoulder condition. 2. Prior to August 27, 2018, the Veteran’s depressive disorder was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 3. From August 27, 2018, the Veteran’s depressive disorder was not manifested by symptoms resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a left shoulder strain have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2018). 2. The criteria for an increased rating of 70 percent, but no higher, prior to August 27, 2018, for a depressive disorder have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2018). 3. The criteria for an increased rating in excess of 70 percent, from August 27, 2018, for a depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, DC 9434 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1977 and from December 1979 to March 1982. The Veteran appeals February 2017, March 2016, and March 2014 Rating Decisions by the Agency of Original Jurisdiction (AOJ). A Board hearing was held in January 2019. A transcript is of record. The Veteran testified to the issues of service connection for ED and a left shoulder strain. The Board notes the Veteran did not elect to have a Board hearing regarding the other issues per his VA Form 9 as to those issues. See, e.g., September 2018 VA Form 9s. The Board hearing transcript also noted the Veteran did not wish to testify on the other issues during the hearing. See January 2019 Board Hearing Tr. at 2. Service Connection A Veteran is entitled to VA disability compensation if there is a disability resulting from personal injury suffered or disease contracted in the line of duty in active service, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty in active service. 38 U.S.C. §§ 1110, 1131. Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an 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, the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) a current disability; (2) a service-connected disability; and (3) a nexus between the current disability and the service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512 (1988). As to the third Wallin element, the current disability may be either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran is diagnosed with a left shoulder strain. See March 2019 VA examination report. The March 2019 VA examiner noted the Veteran must use his left side during shoulder flare-ups and stated the Veteran’s left shoulder strain is likely due to overcompensation. The Veteran also credibly testified his left shoulder condition is secondary to his right due to overworking his left as a result. See January 2019 Board Hearing Tr. at 8-9. The Board finds that there is persuasive evidence of record establishing a link between the Veteran’s left shoulder strain and his service-connected right shoulder condition. Accordingly, the Board finds that a grant of service connection is warranted for a left shoulder strain. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a “staged” rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under DC 9434, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is warranted 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted 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. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, 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, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (Fed. Cir. 2013). The Veteran was initially granted service connection for a depressive disorder at 50 percent disabling in the March 2014 Rating Decision. The Veteran filed a claim for increase in January 2016. The AOJ continued the 50 percent rating in the March 2016 Rating Decision. The Veteran appealed. The AOJ subsequently granted a 70 percent rating effective August 27, 2018, the date of the VA examination, in a September 2018 Rating Decision. 1. Prior to August 27, 2018 Taking into account all relevant evidence, the Board finds that a disability rating of 70 percent, but no higher, for the Veteran’s service-connected depression is warranted prior to August 27, 2018. The Veteran exhibited occupational and social impairment in most areas, such as work, family relations, judgment, thinking, or mood. The AOJ granted a 70 percent rating and effective date based on the August 2018 VA examination report. The August 2018 VA examination report noted the Veteran to have occupational and social impairment with reduced reliability and productivity, isolation, high irritability, sleep problems, suicidal ideation, poor energy, near continuous panic, mild memory loss, and difficulty establishing and maintaining effective work and social relationships. It is likely Veteran had such symptoms warranting a 70 percent rating prior to his August 2018 VA examination. The March 2016 VA examiner found similar symptoms to include suicidal ideation, chronic sleep impairment, and difficulty maintaining effective work and social relationships. The March 2016 VA examiner additionally noted that the Veteran got into physical altercations and drank heavily. As such, the Board finds the Veteran’s symptoms prior to August 27, 2018 warrant a 70 percent rating since his claim for increase. Nevertheless, the Board finds that the Veteran did not exhibit total occupational and social impairment. While he exhibited significant social impairment, it fell short of total. For example, the Veteran was still married and maintained a relationship with his children and grandchildren. See August 2018 and March 2016 VA examination reports. The evidence did not demonstrate frequent hallucinations or delusions. The record did not suggest gross impairment in thought processes or communication evidenced by his interactions. The Veteran also remembered his own name and was not found disoriented to time or place. The Veteran remained well-groomed and could manage his own financial affairs. While the Veteran did exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology was not of sufficient severity, frequency, and duration to result in a higher rating at that time. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a 100 percent evaluation are not met. Thus, the Board finds that the criteria for an increased disability rating of 70 percent, but no higher, prior to August 27, 2018, for a depressive disorder have been met. 2. From August 27, 2018 As discussed above, the Board finds that the Veteran did not exhibit total occupational and social impairment. While he exhibited significant social impairment, it fell short of total. For example, the Veteran is still married and maintains a relationship with his children and grandchildren. See August 2018 and March 2016 VA examination reports. The evidence does not demonstrate frequent hallucinations or delusions. The record does not suggest gross impairment in thought processes or communication evidenced by his interactions. The Veteran also remembers his own name and was not found disoriented to time or place. The Veteran remains well-groomed and can manage his own financial affairs. While the Veteran did exhibit some symptoms contemplated in total occupational and social impairment, the symptomatology is not of sufficient severity, frequency, and duration to result in a higher rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Hence, the criteria for a 100 percent evaluation are not met. Accordingly, the evidence of record does not support a rating in excess of 70 percent, from August 27, 2018, for a depressive disorder. REASONS FOR REMAND 1. ED The Veteran contends his ED is secondary to his depression and pain. See May 2014 Notice of Disagreement (NOD) and January 2019 Board Hearing Tr. at 5. The Veteran also mentioned his depression medication may be impacting his ED. See January 2016 VA Form 9. However, the Veteran has not been afforded a VA examination and an etiology opinion, especially a secondary aggravation opinion, has yet to be rendered. Therefore, remand is required to determine the nature and etiology of his ED. 2. Hypertension The August 2018 VA examiner found there is a speculative relationship between the Veteran’s hypertension and pain. However, the VA examiner did not properly address aggravation. Further, the VA examiner noted the Veteran exhibited high blood pressure readings around his headaches. Therefore, a secondary opinion regarding the Veterans service-connected headaches is also required. 3. Right Shoulder Dislocation The March 2019 VA examiner noted the Veteran to have more pain, stiffness and limited mobility during flare-ups. However, the VA examiner was unable to estimate ROM during flare-ups and it is based solely on the Veteran’s demonstration for each plane of motion under those conditions. The VA examiner did not obtain adequate information to allow the Board to gauge the extent of his condition during flare-ups. In Sharp v. Shulkin, the Court of Appeals for Veterans Claims (Court) held that a VA examination is inadequate when the VA examiner does not elicit relevant information as to the Veteran’s flares or ask him to describe additional functional loss, if any, he suffered during flares and then does not “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 [he or she] could not do so.” 29 Vet. App. 26, 35 (2018). As such, the VA examination is inadequate for rating purposes. Therefore, remand is required for an adequate examination that properly addresses flare-ups. 4. TDIU The Veteran also suggests that his service-connected disabilities prevent him from pursuing employment, including in his previous profession as a carpenter. The issue of entitlement to TDIU has been raised by the record, but is inextricably intertwined with the other issues being remanded. As such, the Board will defer adjudication of this issue. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). On remand, the Veteran’s full employment and educational history should be obtained before the TDIU issue is adjudicated. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records relevant to treatment the Veteran received for his ED, hypertension, and right shoulder condition that are not already of record. This includes treatment from the VAMCs in Tuskegee and Montgomery Alabama and VAMCs in Columbus and Fort Benning Georgia. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified and the record clearly documented. 2. Obtain an employment history for the Veteran for the pendency of the claim, including the dates employment, whether any work performed was part-time or full-time, and the wages earned. Information about the Veteran’s education level and any employment training should also be obtained. 3. After the development outlined in #1 above is complete, schedule the Veteran for an examination to determine the nature and etiology of his ED. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s ED was incurred in, or is otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s ED was CAUSED by his service-connected depressive disorder, to include any medication taken for depression? Is it at least as likely as not that the Veteran’s ED was AGGRAVATED by his service-connected depressive disorder, to include any medication taken for depression? Is it at least as likely as not that the Veteran’s ED was CAUSED by his service-connected shoulder conditions? Is it at least as likely as not that the Veteran’s ED was AGGRAVATED by his service-connected shoulder conditions? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 4. After the development in #1 above, schedule the Veteran for an examination to determine the nature and etiology of his hypertension. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the examiner. After the record review and examination of the Veteran, the examiner is asked to respond to the following inquiries: Is it at least as likely as not that the Veteran’s hypertension was incurred in, or is otherwise related, to his time on active service? Is it at least as likely as not that the Veteran’s hypertension was CAUSED by his service-connected shoulder conditions? Is it at least as likely as not that the Veteran’s hypertension was AGGRAVATED by his service-connected shoulder conditions? Is it at least as likely as not that the Veteran’s hypertension was CAUSED by his service-connected headaches? Is it at least as likely as not that the Veteran’s hypertension was AGGRAVATED by his service-connected headaches? Is it at least as likely as not that the Veteran’s hypertension was CAUSED by his service-connected psychiatric condition? Is it at least as likely as not that the Veteran’s hypertension was AGGRAVATED by his service-connected psychiatric condition? In rendering this opinion, the examiner is advised that the Veteran is competent to report his symptoms and history. Such reports must be acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran’s reports, he or she must provide an explanation for such rejection. The examiner is not to improperly discount the Veteran’s lay statements or mistakenly rely on an absence of medical evidence in the record to support his or her conclusions. The complete rationale for all opinions should be set forth and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be provided without resorting to mere speculation, the examiner must provide a complete explanation for why an opinion cannot be rendered. In so doing, the examiner must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). 5. After the development in #1 above, schedule the Veteran for an examination of the current severity of his right shoulder condition. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran’s condition and discuss the effect of the Veteran’s condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 6. After the above development has been completed, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Department of Veterans Affairs The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.