Citation Nr: 21003084 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 19-23 521 DATE: January 19, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to degenerative arthritis of the lumbar spine and/or secondary to migraine headaches, is granted. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine, beginning February 8, 2011 is denied. REMANDED Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. Entitlement to service connection for a right leg condition, to include as secondary to degenerative arthritis of the lumbar spine, is remanded. Entitlement to service connection for a left leg condition, to include as secondary to degenerative arthritis of the lumbar spine, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s unspecified depressive disorder began during active duty service and was aggravated by degenerative arthritis of the spine. 2. There is no objective evidence which shows that the lumbar spine manifested in ankylosis, incapacitating episodes of more than one week, or forward flexion of less than 45 degrees during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection an acquired psychiatric disorder have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 2. The criteria for entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5235-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2010 to February 2011. In July 2019, the Board of Veterans’ Appeals (Board) remanded the matters on appeal for further development. In January 2020, the Board denied the issue of entitlement to a rating in excess of 30 percent for migraine headaches. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Joint Motion for Partial Remand (JMR), the Court, in part, vacated the Board’s decision regarding the current migraine headache appeals, and remanded the matter to the Board for compliance with the terms of the JMR. In November 2020, the Veteran’s representative waived any additional time to submit additional evidence or argument. In the June 2016 private psychiatric examination, the examiner found the Veteran’s acquired psychiatric disorder hindered the Veteran from maintaining substantial full-time employment; thereby a derivative claim of TDIU has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 1. Entitlement to service connection for an acquired psychiatric disorder Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To prevail on the issue of service connection, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to, or aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Veteran’s enlistment examination showed no psychiatric abnormalities. See May 2010 Report of Medical Examination. In the July 2011 VA examination, the Veteran reported a history of depression and sleep impairment. The Veteran submitted a June 2016 mental disorder disability benefits questionnaire from psychologist H.H.-G. The examiner diagnosed the Veteran with unspecified depressive disorder. The examiner provided an additional assessment, and found that the unspecified depressive disorder more likely than not began during his military service, and the disorder was aggravated by his degenerative arthritis of the lumbar spine. In October 2019, the Veteran was provided with a VA mental disorder examination. The examiner diagnosed the Veteran with major depressive disorder. The examiner provided a negative nexus opinion, finding the Veteran was first depressed in high school, and the Veteran’s depression was not due to or a result of the migraine headaches or degenerative arthritis of the lumbar spine. The Veteran provided a July 2020 private opinion from psychologist H.H.-G. The examiner specifically addressed the October 2019 VA examination, and provided her rationale for the conclusion that the evidence supports finding that the Veteran’s acquired psychiatric disorder manifested during active duty service. The Board acknowledges that there is a contrary October 2019 VA opinion of record suggesting that the Veteran’s acquired psychiatric disorder was not related to service. The Board notes that although the VA examiner determined depression pre-dated active duty service, the Veteran’s entrance examination was negative for any evidence of an acquired psychiatric disorder. When an issue is raised as to whether the disorder claimed by a veteran preexisted service, the governing law provides that every veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities or disorders “noted” at the time of examination, acceptance, and enrollment into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that (1) an injury or disease existed before acceptance and enrollment into service (2) and was not aggravated by such service. See 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b); Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). This statutory provision is referred to as the “presumption of soundness.” Horn v. Shinseki, 25 Vet. App. 231, 234 (2012). In Smith v. Shinseki, 24 Vet. App. 40, 45 (2010), it was clarified that the presumption applies when a Veteran has been “examined, accepted, and enrolled for service,” and where that examination revealed no “defects, infirmities, or disorders.” 38 U.S.C. § 1111. Plainly, the statute requires that there be an examination prior to entry into the period of service on which the claim is based. See Crowe v. Brown, 7 Vet. App. 238, 245 (1994). Only such conditions as are recorded in examination reports are considered as “noted.” 38 C.F.R. § 3.304(b). History of pre-service existence of conditions recorded at the time of examination does not constitute a notation of such conditions but will be considered together with all other material evidence in determinations as to inception. 38 C.F.R. § 3.304(b)(1). Therefore, where there is evidence showing that a disorder manifested or was incurred in service, and this disorder is not “noted” on the Veteran’s entrance examination report, this presumption of soundness operates to shield the Veteran from any finding that the unnoted disease or injury preexisted service. See Gilbert v. Shinseki, 26 Vet. App. 48 (2012); Bagby, 1 Vet. App. at 227; see also 38 C.F.R. § 3.304(b). The presumption of soundness is only rebutted where the evidence clearly and unmistakably shows that the Veteran’s disability (1) existed before acceptance and enrollment into service and (2) was not aggravated by service. See Wagner, 370 F.3d at 1096; Bagby, 1 Vet. App. at 227. The two parts of this rebuttal standard are referred to as the “preexistence prong” and the “aggravation prong.” Horn, 25 Vet. App. at 234. The Board finds that the VA examiner did not provide the necessary opinion to rebut the presumption of soundness. Apart from the failure to rebut the presumption of soundness, the VA examiner opinion does not include a discussion of the buddy statements of record, or address whether the Veteran’s depression was aggravated by the Veteran’s service-connected disabilities. In reviewing the evidence, the Board finds the positive private opinions were based upon a complete review of the Veteran’s claims file and was more probative due to the extensive rationale based upon the Veteran’s medical and lay evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Thus, entitlement to an acquired psychiatric disorder is warranted, and the claim is granted in full. 2. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. 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. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert, supra. Spinal conditions are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. §§ 4.25, 4.71a, Diagnostic Codes 5242, 5243. The General Rating Formula provides for a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion (ROM) of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5242). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id. Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id. Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. The Veteran was afforded a VA examination in July 2011. The examiner measured flexion at 60 degrees, and extension was measured at 20 degrees. There was no additional limitation of motion with repetitive testing. The Veteran was provided a VA examination in April 2012. He was diagnosed with degenerative disc disease of the lumbar spine. He reported flare-ups, resulting in increased pain, several times per week. Flare-ups were caused by bending, stooping, lifting, prolonged sitting/standing, walking long distances, and driving. On examination, flexion was measured at 75 degrees, and there was objective evidence of pain at 50 degrees. Extension was measured at 25 degrees, and there was objective evidence of pain at 15 degrees. Following repetitive use testing, flexion measured at 60 degrees and extension measured at 20 degrees. There was additional limitation of ROM with repetitive use testing. The functional loss due to repetitive use testing was caused by less movement than normal; weakened movement; excess fatigability; pain on movement; and interference with sitting, standing, and/or weight-bearing. There was localized tenderness to palpation. The Veteran had guarding and/or muscle spasms that did not result in abnormal gait or spinal contour. The examiner found IVDS, and the Veteran had an incapacitating episode of less than 1 week in the previous 12 months. The Veteran was provided a VA examination in March 2013. The Veteran reported flare-ups, resulting in the inability to do anything. On examination, flexion was measured at 60 degrees, and there was objective evidence of pain at 45 degrees. Extension was measured at 20 degrees, and there was no objective evidence of pain. Following repetitive use testing, flexion measured at 50 degrees and extension measured at 15 degrees. There was additional limitation of ROM with repetitive use testing. The functional loss due to repetitive use testing was caused by less-movement than normal and pain on movement. There was localized tenderness to palpation. The Veteran had guarding and/or muscle spasms that did not result in abnormal gait or spinal contour. The examiner found no IVDS. Due to his back pain, the Veteran was unable to stand for prolonged periods, unable to walk more than half a mile without stopping, and unable to lift more than 40 lbs. The Veteran was provided a VA examination in July 2014. The Veteran reported flare-ups, and the Veteran had episodes of sharp pain 4 times per week, lasting all day. The Veteran would have to stop whatever he was doing when the pain began. On examination, flexion was measured at 80 degrees, and there was no objective evidence of pain. Extension was measured at 25 degrees, and there was no objective evidence of pain. Following repetitive use testing, flexion measured at 80 degrees and extension measured at 25 degrees. The functional loss due to repetitive use testing was caused by less-movement than normal. There was localized tenderness to palpation. There was no evidence of ankylosis. The examiner found no IVDS. Due to his back pain, the Veteran was unable to stand for longer than 30 minutes; and pain was caused by lifting more than 20 lbs., bending, and stooping. The examiner noted the Veteran achieved greater forward flexion while removing and donning shoes than he did during the formal testing. The examiner was unable to determine any additional ROM due to flare-ups. May 2016 VA treatment notes show the Veteran went to the emergency room for back pain, and he was put on work restrictions from lifting. The Veteran underwent a VA examination in February 2017. The Veteran reported flare-ups, and the pain was “unbearable.” The Veteran reported the inability to lift anything heavy. On examination, flexion was measured at 90 degrees, and there was no objective evidence of pain. Extension was measured at 20 degrees, and there was objective evidence of pain. There was no evidence of pain with weight bearing, but there was evidence of localized tenderness. Following repetitive use testing, there was no change in the ROM. The examiner was unable to estimate the effects of repeated use over time and flare-ups without resorting to mere speculation. There was no evidence of ankylosis, and the examiner found IVDS that had not resulted in episodes of incapacitation. Due to his back pain, the Veteran was would be unable to perform heavy lifting, repetitive bending, and prolonged walking/standing. The Veteran’s most recent VA examination was provided in July 2019. The Veteran did not report experiencing flare-ups. On examination, flexion was measured at 90 degrees, and extension was measured at 20 degrees without any pain noted on examination. There was no change in ROM with repetitive use testing. There was no evidence of limitation of functional ability with repeated use over a period of time or flare-ups. There was no evidence of ankylosis or IVDS. The Veteran’s back condition has not warranted a rating in excess of 20 percent at any point during the period on appeal. The lowest forward flexion ROM finding was 45 degrees during the March 2013 VA examination. Flexion of 45 degrees is commensurate with a 20 percent rating. The 20 percent rating considers the Veteran’s ROM, and the additional functional loss caused by pain. When considering pain and additional functional loss, the Veteran’s back disability did not closely approximate symptoms commensurate with a 40 percent rating, to include flexion of 30 degrees and favorable ankylosis of the thoracolumbar spine. The Board has considered the evidence of IVDS, but the incapacitating episode of less than one week does not warrant a higher rating under Diagnostic Code 5243. Based on the above, the Board finds that the evidence does not warrant a rating in excess of 20 percent based upon the schedular criteria, and, to this extent, the appeal is denied. The Board notes that the complaints of radicular pain in the lower extremities are addressed in the remand section below. Besides radicular pain, there was no other evidence of neurologic symptoms related to the Veteran’s service-connected back disability. REASONS FOR REMAND 1. Entitlement to an initial rating in excess of 30 percent for migraine headaches is remanded. The Veteran was last afforded a VA headache examination in September 2016. The Veteran provided a statement in November 2020, in which the Veteran reported vomiting and missing work a couple times a month due to his migraine headaches. The Veteran’s VA examination is approximately four years old, and there is evidence the Veteran’s disability may have worsened; accordingly, upon remand, the Veteran should be afforded new VA examination. Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. Entitlement to service connection for a bilateral leg condition, to include as secondary to degenerative arthritis of the lumbar spine is remanded. Service treatment records (STRs) in December 2010 and January 2011 show diagnosis for sciatica. The July 2011 VA examination shows complaints of pain radiating down the left leg, and left leg paresthesias. In the April 2012 VA examination, the Veteran was diagnosed with mild lumbar radiculopathy, right lower extremity. In the July 2014 VA examination, the examiner found no evidence of radiculopathy. VA treatment records from August 2015 and December 2015 show complaints of radiating pain in the left lower extremity. March and April 2016 VA treatment records show complaints of radiating pain in the right lower extremity. The February 2017 VA examiner found radiculopathy in the right lower extremity. The Veteran was provided a VA nerve examination in July 2019. The examiner provided negative findings for radiculopathy of the right and left lower extremities. A negative nexus opinion for the right lower extremity was provided because the examiner found no evidence of a current disability. The examiner did not address the current diagnosis of radiculopathy from the previous VA examinations, and the requirement of a “current” disability is satisfied if the disorder is diagnosed at the time the claim is filed or at any time during the pendency of the appeal. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Therefore, an addendum opinion is needed to provide a nexus opinion for any diagnosed bilateral leg condition diagnosed during the period on appeal. 3. Entitlement to TDIU is remanded. Remand is required for the assignment of evaluations for the now service-connected acquired psychiatric disorder. The regional office (RO) will assign the evaluation(s) for the now service-connected acquired physiatric disorder in the first instance in the near future, but at the moment the Veteran’s currently rated disability does not meet the schedular requirement for consideration of TDIU, as his combined disability rating is 40 percent. See 38 C.F.R. § 4.16(a). Entitlement to TDIU is inextricably intertwined with the RO’s assignment of evaluations in the first instance for the service connection claim granted herein, and the claims remanded herein for further development. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Send the Veteran proper notice under 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) informing him of what is needed to substantiate a claim for TDIU. The Veteran should also be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 2. Afford the Veteran a VA medical examination with a qualified medical profession to address the current severity of the Veteran’s migraine headaches. The most current Disability Benefits Questionnaire must be employed, and all relevant findings indicated in that questionnaire must be addressed. All opinions must be supported by a detailed rationale. 3. After completion of the above development in paragraph one, forward the claims file to a qualified medical professional, to obtain an addendum opinion to determine the nature and likely etiology of the Veteran’s bilateral leg condition, even if currently resolved. The record and a copy of this remand must be made available to and reviewed by the examiner. The examiner should be asked to address the following: (a.) Identify all right and left leg conditions, to include radiculopathy demonstrated during the appeal period (since July 2013) or in proximity to the claim, even if currently resolved; (b.) Provide an opinion as to whether any diagnosed right or left leg condition at least as likely as not (50 percent probability or greater) is etiologically related to any in-service disease, event, or injury to include sciatica documented in the STRs; and (c.) The examiner must opine whether it is at least as likely as not that any diagnosed right or left leg condition was caused by or aggravated beyond its natural progression by degenerative arthritis of the lumbar spine The examiner must indicate that the record was reviewed, and a complete rationale must be provided for all opinions provided. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. N. Quarles, 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.