Citation Nr: 21004311 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 15-01 488 DATE: January 26, 2021 ORDER Entitlement to an evaluation higher than 50 percent for major depressive disorder is denied. Entitlement to an evaluation higher than 10 percent for left ankle degenerative joint disease is denied. REMANDED Entitlement to an evaluation higher than 10 percent for left knee status post anterior cruciate ligament repair is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The symptoms of the major depressive disorder do not more nearly approximate those listed at the 70 percent rating criteria and result in occupational and social impairment with impairment in most areas. 2. The evidence of record does not show marked limitation of motion of the ankle, ankylosis, or symptoms comparable to ankylosis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation higher than 50 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to an evaluation higher than 10 percent for left ankle degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Navy from September 1978 to March 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In February 2018 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of the proceeding is of record. The Board finds that all requirements for hearings 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 previously remanded by the Board in December 2018 and has been returned for further appellate review. The Board finds that there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a July 2020 rating decision granted entitlement to a 10 percent rating for the left foot great toe hallux valgus for the entire period on appeal. The 10 percent rating is the maximum schedular evaluation for hallux valgus. See 38 C.F.R. § 4.71a DC 5280. The rating decision informed the Veteran the 10 percent rating was a full grant of the benefit sought on appeal, and that issue was not recertified to the Board. The Veteran did not express disagreement with the July 2020 decision, and the record does not raise the issue of entitlement to an extraschedular rating for the left great toe hallux valgus. Thus, the July 2020 decision is a full grant as to that issue on appeal and the Board has limited its scope accordingly. Increased Rating 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 (2019). 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 an increased rating claim, the relevant time period for consideration is the time period one year before the claim was filed. Hart, 21 Vet. App. at 509. Here, a January 2010 rating decision continued the 50 percent evaluation for major depressive disorder and an April 2010 rating decision granted service connection for left ankle degenerative joint disease and assigned an initial 10 percent evaluation. The Veteran did not appeal those decisions, but filed a new increased rating claim based on unemployability due in part to service-connected depression and left ankle disorders. See July 2011 report of general information. Thus, the Board will focus on the relevant evidence received since the 2010 rating decisions. 1. Entitlement to an evaluation higher than 50 percent for major depressive disorder. The Veteran asserts his service-connected major depressive disorder is severe enough to warrant an evaluation higher than 50 percent. Major depressive disorder is rated under the General Formula for Mental Disorders (General Formula) at 38 C.F.R. § 4.130. Under the 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); 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). Under the General Formula, 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 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. The relevant evidence includes VA treatment notes and VA examination reports. VA treatment records document that in October 2010 the Veteran felt depressed about events in his life, including family relations and chronic pain. Mental status examination was normal, but the Veteran did display a dysphoric mood and congruent affect. A June 2011 VA examination report documents the Veteran’s testimony that he was sad and concerned related to financial difficulty and unemployment. He reported he was collecting cans to earn extra money. He reported less depression with his medication but continued to have mild to moderate symptoms weekly. He continued to regularly socialize with family members and friends, and spent time at a local park. On mental status examination, the Veteran was sad and worried about providing for himself in the future, but was otherwise groomed, behaved appropriately, and was oriented. He had normal thinking, judgment, and memory. The examiner concluded that the Veteran was not totally occupationally or socially impaired due to his psychiatric impairments. Rather, the Veteran’s symptoms resulted in occupational impairment with reduced reliability and productivity. The Veteran last worked as a warehouse man, and his physical injuries limited his ability to return to that type of employment. He had no success finding work in the depressed economy, and he was living in an area of high unemployment and few opportunities. Next, a March 2014 treatment note documents the Veteran had concerns about anxiety, sleep disturbance, and his alcohol intake. The Veteran did report getting panic attacks but stated they did not occur often and was able to calm himself when they did. He described himself as less social, moodier and more irritable than before. He collected cans to make extra money and cared for two elderly family members. Mental status examination showed depressed, anxious mood and restricted affect, with fair judgment and insight. The psychiatrist assessed moderate major depression and alcohol use disorder. At an April 2014 appointment, the Veteran denied serious symptoms and reported he was stable. He stated his sleep varied but declined a sleep aid. Mental status examination was overall normal, with fair judgment and insight. In August 2016, the Veteran endorsed severe symptoms of anxiety and depression per screening tools utilized at the time. The Veteran reported he was unable to maintain a romantic relationship, and that he had poor sex drive, numb feelings, and poor communication. He described being socially isolated, although he visited his mother several times a week. He described problems falling and staying asleep, and napping during the day. He also reported poor energy, concentration, and appetite. There were no symptoms of psychosis or mania. A September 2016 note reports the Veteran’s complaint of depressed mood on occasion (“sometimes”), tearfulness, feelings of guilt, anhedonia, and recurrent insomnia. Mental status examination was normal except for depressed mood. In January 2017, the Veteran reported that his depressive and anxiety symptoms made it very difficult to do his work, take care of things at home, or get along with others. Screening tools indicated moderate symptoms of depression and mild symptoms of anxiety, noted as improved since the Veteran was last seen. The Veteran was seen again in March 2017. At that time, he was tearful and felt overwhelmed. He reported he was caring for his elderly mother, and his daughter was a positive support for him. Mental status examination was normal, although the Veteran did have a sad and anxious mood. The assessment was moderate major depressive disorder. Next, at a March 2019 appointment, the Veteran reported ongoing depression and a depression screening tool indicated moderately severe depression. He reported the major cause of his depression was trying to get his disability approved. He also described lack of energy, lack of motivation, and social isolation. He explained that he tended to isolate at home, but also visited his mother weekly. Mental status examination showed a mildly depressed mood, but was otherwise normal. At an April 2019 appointment, the Veteran was tearful, but declined medication or therapy. He reported he had “lost everything to addiction,” but was still close to his mother and took her to church. He stated his leisure activities included watching tv and crying. Mental status examination showed a sad and anxious mood. The Veteran was easily distracted from his desired goal and did not recognize a need to change. Overall, he reported his depressive symptoms were at their baseline. The assessments were major depressive disorder, unspecified anxiety disorder, alcohol use disorder, and cocaine use disorder in sustained remission. At the February 2018 hearing, the Veteran testified that he felt depressed all the time and was irritable. He reported sometimes he did not want to be around friends or family and kept to himself at home. He sometimes met his friends at the park and would visit his mother. He described difficulty with attention and concentration, stating he was unable to watch a complete television show. The testimony reflects the Veteran became tearful at the hearing when discussing his symptoms. The Veteran underwent another VA examination in October 2019. The 2019 examiner diagnosed major depressive disorder and alcohol use disorder but was unable to differentiate what symptoms were attributable to each diagnosis. Thus, all symptoms will be considered attributable to the service-connected major depressive disorder. The Veteran reported living alone for the past 4 years. He occasionally visited with family and friends, but often stayed home. He remained unemployed, and stated he left his prior job due to a right knee injury. The Veteran described his typical day as watching television and laying around his home. He went to church on a monthly basis and continued to visit his elderly mother, although he reported it was increasing difficult to deal with people. He said he was unable to maintain a romantic relationship. He described having a depressed mood most days. He stated he wanted to get 100 percent rating so he could go to the base and do some of the things he used to with his old friends. He stated he had difficulty sleeping, was tired all the time, and had difficulty concentrating and staying focused. He was anxious about his financial situation and was easily annoyed and frustrated. He was able to perform his activities of daily living independently. On examination, the Veteran’s mood was depressed, and he was tearful at times. Otherwise, he was groomed, cooperative, and his speech was normal. He had no suicidal ideations, perceptual disturbances, paranoia, or delusions. He was fully oriented and had intact thinking, insight, judgment, and reasoning. For VA rating purposes, the examiner identified depressed mood, chronic sleep impairment, disturbances in motivation and mood, and difficulty in establishing and maintaining effective relationships. The examiner estimated that overall, the documented symptoms caused occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The examiner went on the state that the overall severity of the Veteran’s service-connected psychiatric disorder over time could not be accurately determined without speculation on the basis of diagnostic testing results due to the extremely elevated results of the SIMs test used to discriminate between the presence of psychopathy, cognitive deficit, and malingering. A total score above the recommended cutoff indicated an attempt to intentionally portray oneself in a negative light. The Veteran’s total score was far above the cutoff, which suggested endorsement of a high frequency of symptoms that are highly atypical in patients with genuine psychiatric or cognitive disorders and indicated significant exaggeration of symptoms. Thus, the examiner had difficulty attempting to determine the true level of functioning. The examiner further stated the Veteran’s untreated sleep apnea (he only used his CPAP 1 to 2 times per week) could cause significant disturbances in sleep, mood, energy, concentration, and memory. Despite the 2019 examiner’s explanation regarding the inconsistencies in the diagnostic testing results, the lay testimony and objective findings recorded in that report are consistent with the available treatment records and other lay testimony of record and are sufficient for rating purposes. The VA treatment records reflect symptoms of depression, anxiety, tearfulness, sleep impairment, panic attacks, some social impairment, loss of interest, decreased energy, impaired concentration, feelings of guilt, and anhedonia. Diagnostic screening tools documented symptoms ranging from mild to severe. At the hearing the Veteran testified to symptoms of depression, social withdrawal, difficulty concentrating, and tearfulness. The VA examination reports document symptoms of depression, anxiety, sleep impairment, difficulty concentrating and focusing, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. Symptoms of depressed mood, anxiety, panic attacks (weekly or less often), chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are explicitly contemplated by the 30 and 50 percent rating criteria. The Veteran’s difficulty with concentration and focus more nearly approximates difficulty understanding complex commands or impairment of short and/or long term memory resulting in reduced reliability and productivity. The degree of social withdrawal described by the Veteran more nearly approximates difficulty in establishing and maintaining effective relationships. Feelings of guilt, anhedonia, and loss of interest more nearly approximates disturbances of motivation and mood. Overall, the symptoms documented throughout the period on appeal are either expressly contemplated by the 30 and 50 percent rating criteria, or more nearly approximate the 50 percent rating criteria. Considering the totality of the record the degree of occupational impairment more nearly approximates occupational impairment with reduced reliability and productivity. Despite his symptoms, the Veteran was independent in his activities of daily living, maintained some relationships with family and friends, cared for his elderly mother, and went to places like church and the park. The Veteran also expressed his desire to have his benefit increased to 100 percent so he would be able to do more activities with friends on the Naval Base, which weighs against a finding of more severe impairment. Notably, there is not an inability to establish and maintain effective relationships as although the Veteran was socially isolated, he continued to visit and care for his mother and his daughter and attend church. Throughout the appeal period, the Veteran was noted to be fully oriented and did not neglect his appearance and hygiene. His speech was normal and he was able to function independently. There were not suicidal ideations. Finally, there was not impairment in judgment or thinking. In conclusion, the available medical and lay evidence demonstrate the service-connected major depressive disorder has more nearly approximated the 50 percent rating criteria throughout the appeal period and the claim for increase is denied. 2. Entitlement to an evaluation higher than 10 percent for left ankle degenerative joint disease. The Veteran asserts his left ankle degenerative joint disease (left ankle disorder) is severe enough to warrant an evaluation higher than 10 percent. The left ankle disorder is rated at 10 percent under DC 5003-5271 for arthritis due to trauma and painful motion that is not otherwise noncompensable. See 38 C.F.R. § 4.71a. Under DC 5271, a 10 percent rating is warranted for moderate limited motion of the ankle. A maximum 20 percent rating is warranted for marked limited motion of the ankle. 38 C.F.R. § 4.71a, DC 5271. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Marked” means “having a distinctive or emphasized character”. See www.merriam-webster.com/dictionary/marked. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Veteran underwent a VA examination in November 2010. The examiner identified left ankle symptoms of deformity, giving way, instability, pain, weakness, incoordination, decreased speed of join, and tenderness. On examination the Veteran had guarding. Range of motion testing in active motion showed dorsiflexion to 20 degrees, and plantar flexion to 45 degrees, which constitutes full range of motion. There was objective evidence of pain in active motion. There was no additional limitation after 3 repetitions of range of motion, and no ankylosis. The examiner did not comment on pain in passive range of motion or in weightbearing. On examination, the examiner reported there was no instability or tendon abnormality. The Veteran did not endorse flares of symptoms. The 2010 examiner’s findings about instability appear to be inconsistent, it is unclear whether the discrepancy pertains to the Veteran’s subjective reports of symptoms versus the objective examination reports. The available VA treatment records do not show left ankle giving way, instability, or weakness. The Veteran underwent another VA examination in October 2019. At that time, the Veteran reported his ankle was painful, and he walked at a snail pace. He had tripped on a few occasions, and was unable to do more than walk around his subdivision. He did not endorse any flares ups of the ankle. Range of motion of the left ankle was normal. There was pain noted on examination but did not result in functional loss. There was no evidence of pain in weight bearing or in non-weight bearing, and no pain in passive motion. There was tenderness along the medial lateral joint line. The Veteran was able to perform 3 repetitions without additional loss of function or range of motion. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. There were no additional contributing factors of disability. There was normal muscle strength and no ankylosis. There was no joint laxity when compared to the opposite side. The Veteran regularly used a can due to his hips, knees, ankle and left toe. The examiner found the severity of the left ankle condition was mild. At the Board hearing, the Veteran testified that due to his left ankle symptoms, he limped and had difficulty walking. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the left ankle disorder. The Board acknowledges the Veteran’s lay reports of symptoms of pain, slow movement, and impairment with prolonged walking and standing. However, even considering the Veteran’s lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating limitation so distinctive or emphasized that it would approximate marked limited motion. Rather, the Veteran was assessed as having full range of motion of the ankle throughout the appeal period despite those symptoms. The Board has considered whether any other DCs related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different DC. See 38 C.F.R. § 4.71a. Throughout the appeal there is no evidence of ankylosis, malunion of the os calcis or astragalus, or astragalectomy. Thus, no other DCs are for application. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s appeal for a rating in excess of 10 percent for the left ankle disorder. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to an evaluation higher than 10 percent for left knee status post anterior cruciate ligament repair is remanded. Unfortunately, this issue is remanded for clarification, or reexamination if deemed necessary by the examiner tasked with providing the clarification. The Veteran was most recently examined in October 2019. That examiner documented a left knee history of a meniscus condition, with frequent episodes of locking, pain, and effusion. The examiner cited to a September 2007 “left knee” MRI showing maceration of the lateral meniscus. Review of the VA treatment records show the September 2007 MRI referred to the right knee, and the Veteran underwent surgery for the right knee. The VA treatment records do not otherwise show a left knee meniscal condition, and clarification is necessary to determine whether a left knee meniscal condition is actually present. 2. Entitlement to a TDIU is remanded. Entitlement to a TDIU is remanded as it is inextricably intertwined with his pending claim for an increased rating for the service-connected left knee disorder. The Veteran has asserted that his left knee impacts his ability to maintain employment, but he has not met the schedular requirements for a TDIU for the entire period on appeal. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to remand the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). 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. 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. 2. 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. 3. After any additional records are associated with the claims file, return the file to a VA examiner for clarification as to whether the Veteran has a left knee meniscal condition. The entire claims file must be made available to and be reviewed by the examiner. An examination should be provided if the examiner providing the clarification deems it necessary. 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 is requested to review the October 2019 VA knee examination report and September 2007 right knee MRI in the VA treatment notes, which was erroneously reported as a left knee MRI in the October 2019 VA examination report. The examiner is requested to clarify whether the Veteran has a left knee meniscal condition with symptoms of effusion and locking. (b.) If the examiner determines another examination is required to provide the clarification, the examiner should utilize the appropriate disability benefits questionnaire. 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.