Citation Nr: 21004053 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 16-52 596 DATE: January 25, 2021 ORDER Entitlement to an initial 50 percent evaluation for service-connected unspecified depressive disorder prior to September 9, 2020 is granted. Entitlement to an evaluation higher than 50 percent for service-connected unspecified depressive disorder on and after September 9, 2020 is denied. REMANDED Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a right ankle disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. Entitlement to service connection for a right foot disorder is remanded. Entitlement to service connection for a left foot disorder is remanded. Entitlement to service connection for headaches, to include as secondary to service-connected unspecified depressive disorder, is remanded. Entitlement to service connection for a lumbar spine disorder is remanded. FINDING OF FACT Throughout the period on appeal, the symptoms of the unspecified depressive disorder have produced occupational and social impairment with reduced reliability and productivity, and those symptoms more nearly approximate the 50 percent rating criteria. CONCLUSIONS OF LAW 1. Prior to September 9, 2020, the criteria for an initial 50 percent evaluation for service-connected unspecified depressive disorder are 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 an evaluation higher than 50 percent throughout the appeal period are not 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 FINDING AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from June 1997 to June 2000 and from November 2002 until August 2003. He had additional service in the Army National Guard of Oklahoma, including periods of inactive duty for training (INACDUTRA) and active duty for training (ACDUTRA). This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). To the extent that any evidentiary deficiency was noted, the Board finds that it has been cured on remand. This matter was remanded in March 2020. For the issue decided herein, there has been compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a September 2020 rating decision increased the evaluation for unspecified depressive disorder to 50 percent effective September 9, 2020. Higher evaluations remain possible throughout the appeal and the issue remains in appellate status. 1. Entitlement to an initial evaluation higher than 30 percent prior to September 9, 2020, and to an evaluation higher than 50 percent on and after that date for service-connected unspecified depressive disorder. The Veteran seeks at least a 70 percent evaluation for service-connected unspecified depressive disorder. See March 2016 notice of disagreement. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2019). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2019). 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 (2019). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2017). 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 (2019). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when 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). In either case, 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. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). Unspecified depressive disorder, Diagnostic Code 9434, is rated under the General Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130. Under the General Formula, 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 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. The Board must undertake a holistic analysis to 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). VA treatment records show that in August 2014 the Veteran presented with complaints of depression, irritability, and memory problems. He reported finding usual activities less pleasurable and he was less social. At a September 2014 appointment, the Veteran reported he had been “good,” but he and his wife had separated. He continued to be dysphoric with decreased energy and had been sleeping “a little at a time.” He had no suicidal or homicidal ideations. November 2014 treatment notes report the Veteran continued to experience depression, dysphoria, anhedonia and insomnia. The Veteran attended a VA examination in November 2014. The examiner diagnosed unspecified depressive disorder. The Veteran reported relationship difficulty and he was separated from his spouse, and distant relationships with his family members. He worked as a police officer and recently completed a bachelor’s degree. He described loss of energy, feeling on edge, feeling emotionally withdrawn, and difficulty expressing emotion. The examiner noted symptoms of depressed mood, suspiciousness, chronic sleep impairment, and flattened affect. Overall, the examiner determined the Veteran’s symptoms produced occupational and social impairment due to mild or transient symptoms that decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or, symptoms controlled by medication. July 2015 VA treatment notes document the Veteran had issues with anger and communication, especially with immediate family relationships. He also reported a lack of motivation and energy. He had nightmares about twice per month, and some avoidance and hypervigilance. He reported he was no longer social, did not like people, and was separated from his spouse. He did endorse some passive thoughts about suicide but denied any plan or intent, stating he just did not want to do it. He self-rated his depression at a 7 on a scale of 1 to 10, and he was observed to have a flattened affect. In April 2016, the Veteran reported his depression was stable and he had stopped taking his medication. At the September 2019 hearing, the Veteran reported he was not in any treatment program for his depression. He reported few friends, he was going through a third divorce, and he was raising his sons on his own. He reported his mental health interfered with his family relationships because he isolated himself and had a “short fuse.” He denied any physical aggression. He did not describe difficulty at work. The Veteran attended another VA examination in September 2020. At that time, the Veteran was divorced and living with his two sons. He continued to be employed, and he spent most of his free time alone playing video games and drinking. He had little interaction with others, including his coworkers. He did talk to a friend every few weeks. The examiner identified symptoms of depressed mood, suspiciousness, chronic sleep impairment, flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Mental status examination showed a flattened affect. Overall, the examiner found those symptoms caused occupational and social impairment with reduced reliability and productivity. The evidence demonstrates the symptoms of the unspecified depressive disorder have more nearly approximated the 50 percent criteria for the duration of the appeal period. The Veteran has demonstrated a flat affect at both VA examinations and in July 2015. The medical and lay evidence also demonstrates disturbances of motivation and mood, such as dysphoria, anhedonia, and feeling withdrawn. The lay and medical evidence also shows ongoing difficulty in establishing and maintaining effective work and social relationships. These symptoms have been present throughout the period on appeal and are contemplated by the 50 percent rating criteria. Accordingly, that evaluation is for assignment prior to September 20, 2020. For the entire appeal period, however, no higher evaluation is for assignment. First, the evidence does not show deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The evidence did not demonstrate judgment problems or thinking. Although he reported depression and irritability, and was separated and then later divorced, he remained employed. Second, the evidence does not show obsessional rituals which interfere with routine activities, speech that is 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, or neglect of personal appearance and hygiene. Third, the Veteran did endorse passive suicidal ideation in July 2015, but he has denied suicidal ideation on other occasions. Although suicidal ideation is contemplated by the 70 percent rating criteria, 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 a 50 percent rating. 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 denied thoughts, intent, or a plan involving self-harm. The evidence does not reflect significant occupational impairment. Although the Veteran is distant from his coworkers, he has not described, and the evidence does not show, impairment in his ability to perform his job. The evidence does reflect significant social impairment. The Veteran does not socialize, has few close relationships, and has been divorced 3 times. He does care for his two children, and he is in infrequent contact with a friend. Overall, and resolving any reasonable doubt in the Veteran’s favor, the degree of occupational and social impairment has more nearly approximated reduced reliability and productivity throughout the period on appeal, but no higher. In sum, the evidence demonstrates the criteria for an initial 50 percent evaluation are met, but the criteria for an evaluation higher than 50 percent are not. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder is remanded. 2. Entitlement to service connection for a right knee disorder is remanded. 3. Entitlement to service connection for a right ankle disorder is remanded. 4. Entitlement to service connection for a left ankle disorder is remanded. 5. Entitlement to service connection for a right foot disorder is remanded. 6. Entitlement to service connection for a left foot disorder is remanded. 7. Entitlement to service connection for headaches, to include as secondary to service-connected unspecified depressive disorder, is remanded is remanded. 8. Entitlement to service connection for a lumbar spine disorder is remanded. Unfortunately, there has not been compliance with the prior remand directives, so the remaining service-connection claims are again remanded. Stegall v. West, 11 Vet. App. 268, 271 (1998). RO compliance with remand directives is not optional or discretionary and the Board errs as a matter of law when it fails to ensure remand compliance. Stegall, 11 Vet. App. at 271. The March 2020 Board remand directed the AOJ to verify all periods of ACDUTRA and INACDUTRA in a memorandum for a file, which was not accomplished. Thus, remand is again required. The March 2020 Board Remand also directed the AOJ to obtain examinations and opinions pertaining to the Veteran’s service-connection claims, however the opinions provided in August and September 2020 are not adequate. For each diagnosed disorder, the examiner opined the condition was not caused or aggravated by a period of active duty and did not manifest to a compensable degree within one year of separation from service. In support of that conclusion, the examiner generally provided the same rationale that the STRs did not show the condition was chronic in service, and there was a lapse in treatment for the claimed condition. In providing that rationale, the examiner failed to address the lay testimony of chronic symptoms, December 2019 private medical opinions, and other evidence highlighted by the Board in the prior Remand directives. The matter is again remanded to obtain adequate opinions. Last, on remand efforts must be made to identify and obtain outstanding and relevant VA or private treatment records. 38 C.F.R. § 3.159(c)(1)(2019); Dunn v. West, 11 Vet. App. 462 (1998); Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Verify the Veteran’s periods of ACDUTRA and INACDUTRA in a memorandum for the file. If this information not available, or the search for records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain this information must continue until it is determined that it does not exist or that further attempts to obtain the information would be futile. The non-existence or unavailability of such information must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 3. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 4. After any additional records are associated with the claims file, obtain an addendum opinion on the etiology of the claimed right and left knee disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left knee disorder is due to an injury or disease incurred during a period of ACDUTRA. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left knee disorder is due to an injury sustained during a period of INACDUTRA. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left knee disorder manifested to a compensable degree within one year of separation from a period of active duty service. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left knee disorder had onset in, or is otherwise related to, active military service. (e.) The examiner is requested to address the following: i) the STRs, including May 2000 reports of medical examination and history, a July 2003 post deployment questionnaire, February 2005 reports of medical examination and history, and an April 2005 post deployment questionnaire; ii) private treatment records documenting left knee pain in December 2009 with February 2010 imaging studies, bilateral knee pain in December 2012, and right knee surgery in November 2016; iii) VA treatment records from April 2016 noting a report of bilateral knee pain since 1997 and right knee imaging studies from August 2016; iv) the Veteran’s September 2019 hearing testimony of chronic symptoms since an in-service onset; v) and the December 2019 private examination report. 5. After any additional records are associated with the claims file, obtain an addendum opinion on the etiology of the claimed right and left ankle disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left ankle disorder is due to an injury or disease incurred during a period of ACDUTRA.   (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left ankle disorder is due to an injury sustained during a period of INACDUTRA. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a chronic right or left ankle disorder manifested to a compensable degree within one year of separation from a period of active duty service. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left ankle disorder had onset in, or is otherwise related to, active military service (e.) The examiner is requested to address the following: i) the STRs, including May 2000 reports of medical examination and history, a July 2003 post deployment questionnaire and report of medical assessment, February 2005 reports of medical examination and history, and an April 2005 post deployment questionnaire; ii) VA treatment records from August 2014 noting complaints of ankle pain; iii) the Veteran’s September 2019 hearing testimony of chronic symptoms since an in-service onset; iv) and the December 2019 private examination report. 6. After any additional records are associated with the claims file, obtain an addendum opinion on the etiology of the claimed right and left foot disorders. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left foot disorder is due to an injury or disease incurred during a period of ACDUTRA. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left foot disorder is due to an injury sustained during a period of INACDUTRA. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left foot disorder manifested to a compensable degree within one year of separation from a period of active duty service. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a right or left foot disorder had onset in, or is otherwise related to, active military service.   (e.) The examiner is requested to address the following: i) the STRs, including May 2000 reports of medical examination and history, July 2003 post deployment questionnaire and report of medical assessment, February 2005 reports of medical examination and history, an April 2005 post deployment questionnaire, and May 2005 treatment for laceration of the right fourth toe; ii) the Veteran’s September 2019 hearing testimony of chronic symptoms since an in-service onset; and iii) the December 2019 private examination report. 7. After any additional records are associated with the claims file, obtain an addendum opinion on the etiology of the claimed lumbar spine disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a lumbar spine disorder is due to an injury or disease incurred during a period of ACDUTRA. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a lumbar spine disorder is due to an injury sustained during a period of INACDUTRA.   (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a lumbar spine disorder manifested to a compensable degree within one year of separation from a period of active duty service. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a lumbar spine disorder had onset in, or is otherwise related to, active military service (e.) The examiner is requested to address the following: i) the STRs, including May 2000 reports of medical examination and history, a July 2003 post deployment questionnaire, February 2005 reports of medical examination and history, and an April 2005 post deployment questionnaire; ii) private treatment records documenting back pain in December 2009 with April 2010 nerve studies; iii) the Veteran’s September 2019 hearing testimony of chronic symptoms since an in-service onset; and iv) the December 2019 private examination report.   (f.) 8. After any additional records are associated with the claims file, obtain an addendum opinion on the etiology of the claimed headache disorder. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a headache disorder is due to an injury or disease incurred during a period of ACDUTRA. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a headache disorder is due to an injury sustained during a period of INACDUTRA. (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a headache disorder is caused or aggravated by service-connected unspecified depressive disorder. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that a headache disorder had onset in, or is otherwise related to, active military service. (e.) The examiner is requested to address the following: i) private treatment records from September 2008 documenting 2 to 3 headaches per week in the setting of increased stress; ii) the Veteran’s September 2019 hearing testimony that headaches may be due to stress or lack of sleep associated with his service-connected psychiatric disorder; and iii) the December 2019 private examination report. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.