Citation Nr: 20022463 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 17-51 160 DATE: March 31, 2020 ORDER As new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability (claimed as low back and lumbar spine), the claim to reopen is granted. Entitlement to an earlier effective date prior to July 1, 2015 for service connection for persistent depressive disorder is granted. Entitlement to service connection for a back disability (also claimed as low back and lumbar spine) (“lower back condition”) is granted. Entitlement to a rating in excess of 50 percent for persistent depressive disorder currently is denied. FINDINGS OF FACT 1. The March 2011 rating decision that determined that new and material evidence had not been submitted to reopen a claim for service connection for a lower back condition is final. 2. Evidence received since the final March 2011 rating decision is new, relates to an unsubstantiated fact necessary to substantiate the claim for service connection for a lower back condition, and raises a reasonable possibility of substantiating the claim. 3. The Veteran communicated an intent to file for VA benefits, namely for service connection for an acquired psychiatric disorder, on June 16, 2011. 4. The Veteran has experienced back pain causing functional impairment related to his currently diagnosed lower back condition since his separation from service. 5. The severity, frequency, and duration of the Veteran’s symptoms associated with his service-connected persistent depressive disorder did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The March 2011 rating decision denying service connection for a lower back condition is final.38 U.S.C.A. § 7105 (West 2014); 38 C.F.R. §§ 20.302, 20.1103. 2. The criteria for reopening the claim of entitlement to service connection for a lower back condition, have been met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for an earlier effective date of June 16, 2011 have been met for the award of service connection for persistent depressive disorder. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for service connection for a lower back condition are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for a disability rating in excess of 50 percent for persistent 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. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from October 1973 to August 1975. This matter comes before the Board of Veterans’ Appeals (Board) from a November 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a hearing was held in December 2019 before the undersigned Veterans Law Judge. A transcript of that hearing is of record. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability (claimed as low back and lumbar spine) The Veteran submitted his original claim for entitlement to service connection for a lower back condition in September 1989. A rating decision denying the Veteran’s claim for service connection was issued by the RO in May 1990. The Veteran appealed the May 1990 rating decision to the Board, and the Veteran’s claim was denied in August 1997. While the Veteran had initially sought to appeal the Board’s August 1997 decision to the Court of Appeals for Veterans Claims (CAVC), the Veteran ultimately withdrew that appeal, and the Board’s August 1997 became final. See June 1998 CAVC decision. 38 C.F.R. § 20.1103. In a March 2011 rating decision, the RO denied the appeal to reopen the claim for service connection for a back disability, on the basis that the additional evidence did not show a current diagnosis or continuity of symptoms and was not new and material. The Veteran did not perfect an appeal of the March 2011 decision and it became final. In June 2015, the Veteran filed a subsequent claim to reopen. In a November 2015 rating decision, the RO determined that new and material evidence had been received substantiating the Veteran’s claim, and therefore the Veteran’s claim was reopened; however, the RO did not find that a grant of service connection was warranted. As to the RO’s determination, the Board must review on appeal for itself the question of whether a reopening of the Veteran’s claim is warranted. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 U.S.C. § 3.156 (a). Evidence is “new” if it has not been previously submitted to agency decision makers. Id. Evidence is “material” if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Evidence received since the March 2011 rating decision includes a positive nexus opinion from Dr. M.M. stating that the Veteran’s claimed for lower back condition at least as likely as not had its onset during a period of time in which the Veteran was a member of the United States Air Force. See February 2013 private medical nexus opinion. Dr. M.M.’s opinion was rendered upon review of the Veteran’s STRs as well as after an in-person examination. As such, the Board finds that the additional evidence has a reasonable possibility of substantiating the Veteran’s claim in that it relates to an unestablished fact of a medical nexus, and therefore triggers the VA Secretary's duty to assist. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). For this reason, the Board finds that new and material evidence has been submitted in support of the Veteran’s claim for service connection warranting a reopening of his previously denied claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). Earlier Effective Date 2. Entitlement to an earlier effective date prior to July 1, 2015 for service connection for persistent depressive disorder The Veteran seeks an earlier effective date prior to July 1, 2015 for the award of service connection for his persistent depressive disorder disability. See December 2015 VA Form 9. Generally, the effective date of an award of a claim is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. A finally adjudicated claim is an application, formal or informal, which has been allowed or disallowed by the agency of original jurisdiction and the action having become final by the expiration of 1 year after the date of notice of the disallowance, or by denial on appellate review, whichever is the earlier. 38 C.F.R. § 3.160 (d). The VA has amended its regulations concerning the filing of claims, including no longer recognizing informal claims and eliminating the provisions of 38 C.F.R. § 3.157. The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. As the claim at issue in the appeal was filed before these amendments, the prior regulatory provisions apply. See May 2011 “Request for New Service Connection.” The date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1 (r). A claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. §§ 3.1 (p), 3.155. The regulation which governs informal claims, 38 C.F.R. § 3.155, provides that any communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant...may be considered an informal claim. Such informal claim must identify the benefit sought. Id. When a claim has been filed that meets the requirements of 38 C.F.R. § 3.151 or 3.152, an informal request for increase or reopening will be accepted as a claim. The Veteran claims that as he originally filed for service connection for an acquired psychiatric disorder in May 2011, he is entitled to an earlier effective date than the one assigned by the RO upon the grant of service connection for his persistent depressive disorder disability; specifically, prior to July 1, 2015. See December 2015 VA Form 9. Upon review of the record, the Board notes that the RO did not find that the Veteran’s May 2011 claim for an acquired psychiatric disorder entitled him to an earlier effective date for the ultimate grant of service connection, as the representative who filed his May 2011 claim is no longer an accredited representative. See August 2017 Statement of the Case (SOC); see also 38 C.F.R. § 14.629. Under regulations in effect prior to March 24, 2015, any communication or action indicating an intent to apply for benefits could be considered an informal claim as long as it identified the benefit sought. 38 C.F.R. § 3.155(a). As previously indicated, the VA received a communication, albeit from a now unaccredited representative, evidencing the Veteran’s intent to apply for benefits on June 16, 2011; a date that triggers the regulations in effect prior to March 24, 2015. On these facts, the Board does not find that the Veteran was assigned the earliest effective date legally possible under 38 C.F.R. §§ 3.400, as the date of the receipt of the May 2011 claim for an acquired psychiatric disorder is assignable; the date of receipt of claim being June 16, 2011. For these reasons, the Board concludes that an effective date prior to July 1, 2015, for the award of service connection for persistent depressive disorder is warranted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. §3.303(d). 3. Entitlement to service connection for a back disability (also claimed as low back and lumbar spine) The question before the Board is whether the Veteran’s claimed for lower back condition is at least as likely as not related to an in-service injury, event, or disease. As to the first element of Shedden, for service connection the Veteran must show a current disability. Per the Veteran’s September 2015 VA examination, he has current diagnoses of lower back strain, lower back pain, as well as chronic lower back pain. As such, the Board finds that the Veteran’s claim meets the first element of Shedden for service connection. As to the second element of Shedden, for service connection the Veteran must show an in-service incurrence or aggravation of a disease or injury. The Veteran’s STRs evidence medical notations of a lower back strain as well as associated back pain. See July 1975 Physical Profile Serial Report. Thus, the Board finds that the Veteran’s claim meets the second Shedden element for service connection. As to the last element of Shedden, for service connection the Veteran must show a causal relationship between the current disability and the in-service disease or injury. On the issue of nexus, there are probative medical nexus opinions weighing in favor of as well as against the Veteran’s claim for service connection. Weighing against the Veteran’s claim is a September 2015 VA medical examination and nexus opinion stating that his condition is less likely than not related to service as there is no chronic disability noted in service, and there is a lack of medical complaints relative to the claimed for condition for approximately 10 years, from the time of discharge until 1987 when the Veteran began seeing a chiropractor. Id. Additionally, the VA examiner casts doubt upon the evidence weighing in favor of the Veteran’s claim in stating that Dr. M.M.’s February 2013 medical examination is absent of a finding of a medical nexus between the claimed for condition and service, while the Veteran’s testimony is at best evidence of a faulty memory. Id. Here, the Board affords the September 2015 VA examiner’s opinion less probative weight as it does not consider the Veteran’s consistent and competent reports of back pain since service. See Buchanan v Nicholson, 451 F.3d 1331, 1336-37 (Fed Cir. 2006) (“the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence.”). Specifically, the Board finds that upon a review of the record, the Veteran has reported back pain since service, and even sought treatment for said pain following his discharge. See Dr. M.W.’s September 1996 statement as to post-service treatment. Weighing in favor of the Veteran’s claim is a positive medical nexus opinion stating that his claimed for condition at least as likely as not had its onset in service. See February 2013 private medical nexus opinion; see also STRs. Dr. M.M.’s rationale stems from the Veteran’s continuous reports of back pain at present, and since service. Id. The Board affords Dr. M.M.’s medical opinion the most probative weight as it is based upon the objective medical evidence of record, to include an in-person examination of the Veteran, as well as the Veteran’s lay testimony of continuous reports of back pain since service. Id.; see also December 2019 Board hearing testimony. The September 2015 VA examination report noted a diagnosis of back pain and indicated that the Veteran has functional impairment due to back pain, including limitation of motion, back pain with neuropathy requiring a walking cane and pain during flare-ups that prevents physical activities. Where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356, 1367-68 (Fed. Cir. 2018). The Board finds that the evidence demonstrates functional impairment due to the diagnosed chronic back pain and a low back disability for VA compensation purposes exists. The Board has considered the evidence of record showing that the Veteran suffered intercurrent back injuries since service; however, the evidence of record supports a finding that the Veteran suffered from a back condition prior to those incidents and since service. See November 1991 Employee Health Record notation (“…had history of recurrent back pain which was not work-related”); see also November 1992 private medical assessment (“he has an injury of his back which he sustained while in the Air Force secondary to lifting some heavy objects. Since that time, he has had trouble with his lower back.”). The Board also acknowledges the Veteran’s lay testimony in support of his claim for a lower back condition in finding that the objective medical evidence of record corroborates that since service he has suffered from recurrent back pain. See December 2019 Board hearing testimony. Here, the Board notes that a layperson is competent to report the onset and continuity of current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Thus, as the record demonstrates that the Veteran has consistently and competently reported symptoms of back pain since service, continuity of symptomatology is established. Therefore, the nexus element to service connection is met, and a grant of service connection is warranted for the claimed for lower back condition. The Veteran's claim for entitlement to service connection for a lower back condition is granted. Increased Rating Disability ratings are assigned, under a schedule for rating disabilities, based on a comparison of the symptoms found to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing her symptomatology with the criteria set forth in the ratings schedule. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If there is a question as to which evaluation to apply to the Veteran’s disability, 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time. Id. In determining the applicable disability rating, pertinent regulations do not require that all cases show all findings specified by the Rating Schedule; rather, it is expected in all cases that the findings be sufficiently characteristic as to identify the disease and the resulting disability, and above all, to coordinate the impairment of function with the rating. 38 C.F.R. § 4.21. 4. Evaluation of persistent depressive disorder currently evaluated at 50 percent disabling The Veteran contends that based upon newly submitted evidence accompanying his Notice of Disagreement (NOD) to the RO’s November 2015 rating decision, he is entitled to an increased rating in excess of the already awarded 50 percent disability rating for his now service-connected persistent depressive disorder 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 question before the Board is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher for the Veteran’s service-connected persistent depressive disorder. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. Under the General Rating Formula for Mental Disorders, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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’s VA and private treatment records, the September 2015 and April 2016 VA examination(s), as well as the lay statements of record show that the Veteran’s service-connected persistent depressive disorder disability was manifested by symptoms associated with a 30 percent rating (namely depressed mood, anxiety, chronic sleep impairment, mild memory loss, as well as, suspiciousness), symptoms associated with a 50 percent rating (flattened affect, disturbances of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships), as well as symptoms associated with a 70 percent rating (difficulty adapting to stressful circumstances (including a work or worklike setting)). The Board notes that it does not find, upon review of the record, that the Veteran experienced any symptoms associated with the 100 percent rating criteria. Symptoms noted that weigh against finding that the Veteran is entitled to an increased rating in excess of 50 percent disabling for his persistent depressed mood disorder disability include his ability to maintain good relationships with his family of origin; the April 2016 VA examiner noted that although the Veteran’s family support is limited, his wife is very supportive. Additionally, it was indicated that the Veteran’s speech was clear audible, logical, coherent, and goal directed. The Veteran had concrete thought processes with thought content focused in responding to questions. During the examination, the Veteran was considered alert, cooperative, and tracked the conversations with the VA examiner well; oriented to time, place, person, and purpose. The Veteran did not report experiencing hallucinations, delusions, loose associations, or flight of ideas. The Veteran also denied reports of harming himself, others, or property, to include suicidal thoughts and homicidal ideations. His judgment and insight were considered adequate. Id.; September 2015 VA examination. The Board notes that the Veteran’s thinking, to include his abstract-conceptual thinking, were considered impaired by the September 2015 VA examiner, but the record does not support a finding that said impairment rose to the level contemplated by the 70 percent and 100 percent rating criteria. The Board also reviewed the Veteran’s additional medical evidence accompanying his February 2016 NOD. Therein, the Veteran is noted as experiencing severe insomnia and anxiety, while appearing extremely worried, apprehensive, paranoid, and irritable. See May 2001 Psychiatric Note. The Board finds that these noted symptoms do not fall in to the next highest rating criteria, as they are aptly contemplated by the rating criteria currently assigned to the Veteran’s disability, namely disturbances in mood and motivation contemplated by the 50 percent rating criteria, as well as chronic sleep impairment, depressed mood, anxiety, and suspiciousness contemplated by the 30 percent rating criteria. While the Veteran did experience symptoms contemplated by a 70 percent rating, namely difficulty adapting to stressful circumstances (including a work or worklike setting) the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with the 30 percent and 50 percent rating criteria. Accordingly, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's persistent depressive disorder disability resulted in the level of impairment required for an increased rating in excess of 50 percent disabling. As the Veteran’s symptoms do not result in either occupational and social impairment, with deficiencies in most areas, nor in total occupational and social impairment, a rating in excess of 50 percent disabling is not warranted for the Veteran’s service-connected persistent depressive disorder disability. The Veteran’s claim for an increased rating in excess of 50 percent disabling must therefore be denied. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, Associate Counsel 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.