Citation Nr: 20006949 Decision Date: 01/28/20 Archive Date: 01/28/20 DOCKET NO. 17-37 774 DATE: January 28, 2020 ORDER Entitlement to a disability rating in excess of 70 percent for major depressive disorder is denied. Entitlement to a compensable disability rating for scars of the back is denied. REMANDED Entitlement to a compensable rating for a left wrist disability is remanded. Entitlement to a compensable rating for a right knee disability is remanded. The propriety of the reduction of the rating for lumbar spine intervertebral disc syndrome from 60 percent to 20 percent effective August 1, 2018, is remanded. The propriety of the reduction of the rating for hypertension from 10 percent to 0 percent, effective August 1, 2018, is remanded. Entitlement to a rating in excess of 20 percent for service-connected intervertebral disc syndrome, lumbar spine status post-discectomy and spinal fusion with chronic low back pain is remanded. Entitlement to a compensable evaluation for service-connected hypertension is remanded. Entitlement to an effective date prior to August 1, 2018 for the assigned of a 20 percent rating for intervertebral disc syndrome, lumbar spine status post-discectomy and spinal fusion with chronic low back pain. Entitlement to an effective date prior to August 1, 2018 for the assigned of a 0 percent rating for hypertension. Entitlement to service connection for nerve pain, left leg and hip is remanded. Entitlement to service connection for nerve pain, right leg and hip is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s major depressive disorder symptoms did not more closely approximate total occupational and social impairment. 2. The Veteran’s surgical scars of the back are not manifest by any disabling effects not considered under Diagnostic Codes 7800-04. 3. The Veteran’s superficial, linear surgical scars of the back are not unstable or painful, and do not cover a cumulative area of 144 square inches or greater. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for a compensable disability rating for surgical scars of the back have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to June 2014. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2014, February 2017, and May 2018 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in April 2019 for additional development. In April 2019, the Board remanded the issue of entitlement to total disability rating based on individual unemployability (TDIU) as of August 18, 2016. In an October 2018 rating decision, the RO granted TDIU for the entire appeals period. As such, this issue moot and is no longer on appeal. The Veteran has been awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(s) for the period on appeal. The remaining issues are again before the Board for appellate review. Increased Rating Major Depressive Disorder with Anxious Distress and Panic Attacks The Veteran contends that he is entitled to a higher rating for his service-connected psychiatric disability. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. The Veteran underwent a VA examination in November 2016. While the examiner noted that the Veteran displayed significant depression and anxiety, with panic attacks, and that he would likely have significant difficulty functioning effectively in the workplace and sustaining gainful employment, she opined that the Veteran’s service-connected major depressive disorder resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This level of impairment is commensurate with a 70 percent disability rating. While the Veteran has been granted TDIU, he was not totally socially impaired. The evidence reflects that the Veteran has been able to maintain positive family and social relationships. In fact, during the November 2016 VA examination, the Veteran reported that he had a “great relationship” with his wife. He stated the majority of his friends are from the military, but that he maintained some friends from before he entered the military. In addition, the Veteran has not exhibited symptoms—listed or unlisted—that would be associated with a 100 percent rating. The November 2016 VA examination and the Veteran’s lay statements show that his major depressive disorder was manifested by symptoms including depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. These symptoms do not rise to the severity of those contemplated in a 100 percent rating. The Veteran has not shown gross impairment in thought processes or communication, delusions or hallucinations, grossly inappropriate behavior, a danger of hurting self or others, an inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. At his examination, the Veteran was casually dressed and appropriately groomed. He was alert and fully oriented and had appropriate memory. He was cooperative with the assessment process. His mood and affect were dysphoric, with episodes of tearfulness throughout. He displayed good eye contact and his speech was normal in rate and tone, spontaneous and goal-directed. His thought processes were organized with no evidence of formal thought disorder, hallucinations, mania, or delusions. He appeared to be of average intelligence, with capacity for abstract thought, and good insight into his emotional functioning. The Board finds that the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Surgical Scars of the Back The Veteran contends that he is entitled to a higher rating for his surgical scars. He has not provided specific contentions as to why his rating should be increased. The Veteran’s scars are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7805 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7805 any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be rated under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s surgical scars under Diagnostic Code 7805 as there are no disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. In a November 2016 VA examination, the examiner found that there was no limitation of function or other conditions attributable to the Veteran’s scars. The Veteran does not contend that his scars have caused him any limitations or symptoms not considered in the criteria under the other Diagnostic Codes pertaining to scars. With regard to the other Diagnostic Codes pertaining to scars, the evidence of record does not support a finding that a compensable disability rating is warranted. The Veteran was provided with a VA examination in November 2016. The examiner identified three linear surgical scars on the Veteran’s posterior trunk that measured 10.5 centimeters (cm) by 0.2 cm, 2.5 cm x 0.2 cm, and 1 cm x 0.2 cm. The scars were hypopigmented, well healed without evidence of skin breakdown or inflammation, and had no adherence to underlying tissue. The scars were neither painful nor unstable. The Veteran’s surgical scars are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. The scars do not cover an area or areas of 144 square inches or greater. Moreover, the Veteran’s scars are not unstable or painful. Therefore, Diagnostic Codes 7800, 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran’s surgical scars are manifest by any symptoms that would warrant a higher rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for surgical scars of the back. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Increased Ratings - Left Wrist and Right Knee Disabilities The Veteran was provided with VA examinations to determine the severity of his left wrist and right knee disabilities in December 2016. These examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) as they do not contain passive range of motion measurements or pain on weight-bearing testing. In addition, the they do not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The examiner did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups. As such, the Veteran should be provided with current VA examination that comply with the holdings in Correia and Sharp. Reduction to Ratings – Hypertension, Back Disability The ratings for the Veteran’s service-connected hypertension and back disability were reduced in a May 2018 rating decision. The Veteran filed a notice of disagreement in July 2018, but a statement of the case on the reduction of these disability ratings has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Increased Rating, Earlier Effective Dates - Hypertension, Back Disability As a decision on the reduction of the ratings for hypertension and a back disability could significantly impact a decision on the issues of increased ratings and earlier effective dates, the issues are inextricably intertwined. As such, a remand of these issues is required. Service Connection - Nerve Pain, Left and Right Leg and Hip Finally, the examination to ascertain the current severity of the Veteran’s service-connected back disability will provide additional evidence regarding the neurological symptoms in the Veteran’s legs and hips. As such, his claims for service connection for nerve pain in the right and left legs and hips must be remanded to consider this additional evidence. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left wrist. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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). (Continued on the next page)   3. Send the Veteran and his representative a statement of the case that addresses the issues of the propriety of the reduction of the rating for lumbar spine intervertebral disc syndrome from 60 percent to 20 percent effective August 1, 2018, the propriety of the reduction of the rating for hypertension from 10 percent to 0 percent, effective August 1, 2018. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Harrigan Smith 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.