Citation Nr: 21002351 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 12-16 675 DATE: January 13, 2021 ORDER Entitlement to a disability rating of 70 percent, but no higher, for the period before May 19, 2014, for service-connected major depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 70 percent after May 19, 2014, for service-connected major depressive disorder is denied. Entitlement to service connection for bilateral pes planus, secondary to service-connected left foot plantar wart removal is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to April 22, 2009 is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for service-connected left foot sensory neuropathy is remanded. Entitlement to a disability rating in excess of 20 percent for service-connected left foot plantar wart removal is remanded. Entitlement to service connection for any neurological disorder of the left foot, separate from service-connected left foot sensory neuropathy is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran’s major depressive disorder symptoms more closely approximate occupational and social impairment with deficiencies in most areas for the entire period on appeal. At no time during the appeal period, has the impairment more closely approximated total occupational and social impairment. 2. The Veteran’s bilateral pes planus is aggravated by his service-connected left foot plantar wart removal. 3. The claim for TDIU was part of the claims for increased rating that were received on April 22, 2009. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for major depressive disorder prior to May 19, 2014, have 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 disability rating in excess of 70 percent for the period after May 19, 2014, 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. 3. The criteria for service connection for bilateral pes planus as secondary to service-connected left foot plantar wart removal are met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for a TDIU prior to April 22, 2009 is denied. 38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1993 to February 1998 in the United States Navy, to include active duty service in the Gulf War Era. The claims were most recently remanded by the Board in August 2019. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a disability rating in excess of 50 percent prior to May 19, 2014 and in excess of 70 percent thereafter, for service-connected depressive disorder. The Veteran contends that his service-connected depressive disorder is manifest as more severe during the entire period on appeal. 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 prior to May 19, 2014, and 100 percent thereafter. The Board concludes that the Veteran’s symptoms did cause the level of impairment required for a disability rating of 70 percent, but no higher prior to May 19, 2014. That is, from January 17, 2013, 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. At no time during the appeal, have the symptoms resulted in a level of impairment that approximated total occupational and social impairment. 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 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; or memory loss for names of close relatives, own occupation or own name. VA and private treatment records, the February 2013, November 2014, and January 2020 VA examinations, and the Veteran’s contemporary lay statements show that the Veteran’s depressive disorder for the entire period on appeal was manifested by symptoms associated with a 50 percent rating (e.g., depressed mood, chronic sleep impairment, panic attacks more than once a week, mild memory loss, impaired judgement, impaired abstract thinking, disturbances of motivation of mood, difficulty in establishing and maintaining effective work and social relationships), symptoms associated with a 70 percent rating (e.g., difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal appearance and hygiene), and symptoms associated with a 100 percent rating (e.g., intermittent inability to perform activities of daily living). The Veteran’s service-connected major depressive disorder is currently evaluated as 50 percent disabling prior to May 19, 2014 and 70 percent thereafter. The increase to 70 percent was based on the evidence in the November 2014 VA examination. The Board notes that while the November 2014 VA examiner characterized the level of the depressive disorder consistent with the 50 percent criteria, the Veteran demonstrated some symptoms associated with the 70 percent rating. However, the Board finds that the same analysis can be applied when considering the February 2013 VA examination, which in addition to symptoms associated with the 50 percent criteria, includes the symptoms “difficulty adapting to stressful circumstances” and “intermittent inability to perform activities of daily living,” 70 percent and 100 percent criteria respectively. While the November 2014 VA examination does include multiple symptoms associated with a 70 percent rating, as opposed to a single symptom, the Board finds significance in the presence of a symptom associated with a 100 percent rating in the February 2013 VA examination. the Board also acknowledges the close proximity of the February 2013 and November 2014 VA examination. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied intent, or a plan involving self-harm in existing treatment records, and during the November 2014 and March 2020 VA examinations. The Board also finds that, affording the Veteran the benefit of the doubt and considering the full spectrum of the Veteran’s symptoms, the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating for the entire period on appeal. The March 2020 VA examination demonstrates the Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The Board’s prior VA examinations characterized the Veteran’s symptom as more closely approximating the level associated with a 50 percent rating, however as stated above, the Board finds that these symptoms taken together more closely approximated the 70 percent rating. While the Veteran did experience symptoms contemplated by a 100 percent rating— intermittent inability to perform activities of daily living —the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. As noted above, the Veteran’s other remaining symptoms were either contemplated by or more consistent with a 70 percent rating. Further, while the Veteran has been granted a TDIU due to service-connected disability, he was not totally socially impaired. While the Veteran’s January 2020 VA examination indicates that the Veteran intends to leave his wife and has no contact with his adult children or remaining family members, his VA treatment records as recent as June 2020 show that he remains living with his wife and has a relationship with at least one of his adult daughters. Furthermore, the same VA examination clearly document that the Veteran does not have an inability to establish and maintain effective relationships. The criteria for a 70 percent rating, but no higher, are met for the period prior to May 19, 2014. 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 at any time during the appeal. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. Service Connection 2. Entitlement to service connection for bilateral pes planus. The Veteran contends that his bilateral pes planus is caused or aggravated by his service-connected left foot plantar wart removal. 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) that a current disability exists, and (2) that the current disability was either (a) proximately caused or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). The January 2020 VA examination shows the Veteran has a current disability of bilateral pes planus, and the VA examiner opined that it is at least as likely as not aggravated beyond its natural progress by his service-connected plantar wart removal. The Board notes that this is not the correct standard for aggravation of a disability by a service-connected condition, the correct standard for aggravation being any increase in disability. However, as the standard contemplated in the positive opinion offered in the January 2020 VA examination is actually a higher bar than the proper standard, the Board finds that the error is harmless. The Board interprets the opinion to include the aggravation standard of “any increase in disability.” Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for bilateral pes planus is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102.” TDIU 3. Entitlement to TDIU prior to April 22, 2009. The Veteran is in receipt of a TDIU beginning April 22, 2009. The Veteran asserts that his service-connected disabilities make him unable to secure or follow a substantially gainful occupation prior to April 22, 2009. The Board granted TDIU in a November 2016 rating decision. In that decision, the Board specifically noted that the TDIU claim was part of the increased rating claims before the Board at that time. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The AOJ effectuated that grant in an April 2017 rating decision, after referring the claim to the Director of Compensation and Pension for an initial extraschedular determination. See 38 C.F.R. § 4.16 (b). The AOJ assigned an effective date of April 22, 2009. Although the Board included the issue of entitlement to TDIU prior to April 22, 2009, the Board finds that consideration of any period before the date is not warranted because the claim for TDIU stems from claims for increased rating that were received on that same date. The effective date assigned by the AOJ in the April 2017 rating decision contemplated that date. Although the AOJ focused the discussion of the grant on the effective date of the grant of service connection for the psychiatric disability, the date of claim for the increased ratings that were before the Board are that same date. The claim for TDIU was considered part of those claims received on April 22, 2009. TDIU was granted for the entire period for consideration. There is no basis for a claim before that date. Harper v. Wilkie, 30 Vet. App. 356 (2018); Rice, 22 Vet. App. at 447. Entitlement to TDIU prior to April 22, 2009 is denied. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 10 percent for service-connected left foot sensory neuropathy is remanded. Unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding the issue of entitlement to an increased rating for service-connected left foot sensory neuropathy. Another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In January 2020 the Veteran underwent a VA examination for peripheral neruopathy. The examiner stated that the Veteran has never been diagnosed with any peripheral nerve condition without acknowledging the previous VA examination and treatment records documenting the service-connected diagnosis. Additionally, the examiner’s subsequent statements in the examination appear to further refute the conclusion that there is no condition, specifically in the functional impact section. Therefore, the VA examination is inadequate and not compliant with the Board’s previous remand. Further examination is required. 2. Entitlement to a disability rating in excess of 20 percent for service-connected left foot plantar wart removal is remanded. 3. Entitlement to service connection for any neurological disorder of the left foot, separate from service-connected left foot sensory neuropathy is remanded. Pursuant to the pervious Board remand the Veteran was sent notice to provide a release for any outstanding private podiatry records. The Board notes, however, that the address this notice was sent is different than the Veteran’s current address, where his supplemental statement of the case (SSOC) and 90 day letter were sent. It is unclear whether the Veteran received the initial notice. Therefore, further remand is required to provide the notice to the Veteran at his current address. The matters are REMANDED for the following action: 1. Using the Veteran’s current address, ask the Veteran to complete a VA Form 21-4142 for Columbia Foot Clinic dated after December 2018. Make two requests for the authorized records from Columbia Foot Clinic, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left foot sensory neuropathy and whether there are any . 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. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.