Citation Nr: A21016366 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 200808-102428 DATE: October 5, 2021 ORDER Restoration of a 10 percent rating for scar, residual status post right inguinal hernia repair (previously rated under DC 7338), is granted, effective February 7, 2019. A 70 percent rating and no higher, for adjustment disorder with mixed anxiety, depressed mood, and insomnia, is granted. REMANDED Entitlement to a rating in excess of 10 percent rating for scar, residual status post right inguinal hernia repair (previously rated under DC 7338), is remanded. FINDINGS OF FACT 1. The Veteran's scar, residual status post right inguinal hernia repair is painful; there has been no improvement. 2. The severity, frequency, and duration of the Veteran's adjustment disorder with mixed anxiety, depressed mood, and insomnia symptoms more closely approximate occupational and social impairment with deficiencies in most areas; at all times relevant to the decision; the severity, frequency, and duration of the Veteran's symptoms do not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating of 10 percent scar, residual status post right inguinal hernia repair have been met; restoration of the rating is warranted effective February 7, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, Part 4, §§ 4.1, 4.2, 4.3, 4.7, 4.114, 4.118, Diagnostic Code 7804. 2. The criteria for a 70 percent rating for adjustment disorder with mixed anxiety, depressed mood, and insomnia are met; a disability rating in excess of 70 percent are not met or approximated at any time. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1987 to February 1991. In June 2019, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) as to the issues addressed in this decision, requesting review of an April 2019 rating decision. In August 2019, the agency of original jurisdiction (AOJ) issued the HLR decision, which considered the evidence of record at the time of the April 2019 decision. This appeal to the Board of Veterans' Appeals (Board) was initiated by the Veteran filing an August 2020 VA Form 10182, Decision Review Request: Board Appeal, wherein he elected the Hearing docket. In May 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. The Board may only consider the evidence of record at the time of the April 2019 decision, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). While the Veteran's VA form 10182, received August 8, 2020, identified two other issues that were addressed in the April 2019 rating decision (increased ratings for wrist fracture and lipoma), the August 2019 rating decision did not address those issues and his 10182 is not timely as to those issues inasmuch as they were only addressed in the April 2019 decision. Disability Ratings and Reductions Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The provisions of 38 C.F.R. § 3.344 provide criteria and considerations to take into account when determining whether a reduction in a rating is warranted. 38 C.F.R. § 3.344(a) notes that rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and Department of Veterans Affairs regulations governing disability compensation and pension. It is essential that the entire record of examination and the medical-industrial history be reviewed to ascertain whether the recent examination is full and complete, including all special examinations indicated as a result of general examination and the entire case history. Examinations less full and complete than those in which payments were authorized or continued will not be used as a basis of reduction. Ratings on account of diseases subject to temporary or episodic improvement, e.g., manic depressive or other psychotic reaction, epilepsy, psychoneurotic reaction, arteriosclerotic heart disease, bronchial asthma, gastric or duodenal ulcer, many skin diseases, etc., will not be reduced on any one examination except in those instances where all the evidence of record clearly warrants the conclusion that sustained improvement has been demonstrated. Moreover, though material improvement in the physical or mental condition is clearly reflected, the rating agency will consider whether the evidence makes it reasonably certain that the improvement will be maintained under the ordinary conditions of life. 38 C.F.R. § 3.344(a). The provisions of paragraph (a) apply to ratings which have continued for long periods at the same level (5 years or more). They do not apply to disabilities which have not become stabilized and are likely to improve. Reexaminations disclosing improvement, physical or mental, in these disabilities will warrant reduction in rating. 38 C.F.R. § 3.344(c). The percentage evaluation of a service-connected condition may be reduced when VA receives evidence that the condition has become less disabling. 38 C.F.R. § 3.105 (e). A claim stemming from a rating reduction action is a claim for restoration of the prior rating, not a claim for an increased rating. Peyton v. Derwinski, 1 Vet. App. 292 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 280 (1992). 1. Restoration of a 10 percent rating for scar, residual status post right inguinal hernia repair (previously rated under DC 7338), is granted, effective February 7, 2019. The Veteran seeks to restore the 10 percent rating for his scar, residual status post right inguinal hernia repair. This 10 percent rating was assigned in a May 2015 rating decision, effective from January 2, 2014, under DC 7804 for one painful scar using the Schedule of Ratings Skin. 38 C.F.R. § 4.118. Prior to that, a 10 percent rating had been in effect from May 14, 2010 to January 2, 2014 under DC 7338 for hernia residuals which were identified in the December 2010 rating decision as consisting of a superficial scar that is painful on examination. The scar rating under DC 7804 was reduced to noncompensable in the appealed April 2019 rating decision, effective from February 7, 2019, based on examination findings that it was not painful. The noncompensable evaluation was thus assigned based on a diagnosed disability with no compensable symptoms. The RO explained that a predetermination notice was not required as the reduction did not affect the overall monetary award. The RO cited that service connection and a 30 percent rating were being awarded for the psychiatric disorder in the same rating decision. As this decision did not result in a reduction of compensation, the notice provisions of 38 C.F.R. § 3.105 (e) are not for application. Nevertheless, the critical question for consideration is whether the reduction was justified by the evidence. We note this rating was in effect for 5 years. 38 C.F.R. § 3.344. Prior to the February 2019 examination, the pertinent record, to include the Veteran's statements, VA treatment records and the prior VA examinations in 2010, April 2015 and November 2015, is replete with reference to the scar, residual status post right inguinal hernia repair being painful in the right inguinal area, linear and measuring 8 x 0.5 cm. In the February 2019 examination report, the VA examiner noted the Veteran reported continued pain at site of previous hernia repair; states it is painful and throbbing with sitting, driving, and noted "it's painful all the time". The examiner marked "No", with regard to painful scarring as they did not find the scar itself to be painful. They added that direct palpation of the scar elicited no objective evidence of pain. The scar was a linear surgical scar, status post right inguinal hernia repair, measuring 8 cm x 0.3 cm, mildly hyperpigmented, well healed and without evidence of skin breakdown or inflammation. There was no adherence to underlying tissue and it was not unstable. At the hearing, the Veteran testified that his hernia scar residual has not improved and has always been painful. His symptoms have not improved and have actually gotten progressively worse. He has no idea how the examiner found that he did not have a painful scr in that area. He told the examiner it was painful. The Board acknowledges the testimony and notes Veteran's complaints regarding pain at the 2019 examination, but also notes the scar was described as not painful on physical examination. Yet, there is overwhelming support for the conclusion that the scar remained painful. Even the examination provided support for the conclusion that the scar was painful on a day to day basis. We conclude that the reduction was not justified by the evidence. The 10 percent rating is restored for a single painful scar under DC 7804. 2. A 70 percent rating and no higher, for adjustment disorder with mixed anxiety, depressed mood, and insomnia, is granted. In the April 2019 rating decision, the RO granted service connection for this disability and assigned a 30 percent rating effective from December 26, 2017. The Veteran testified that the disability is essentially worse than described by the March 2019 VA examiner who found manifestations compatible with a 30 percent rating. He argues that VA examiner spent no appreciable time with him and that the conclusions are not supported. He urges that the non-VA evidence is a more accurate representation of his degree of impairment. Upon review of the evidence, with specific emphasis on the March 2019 opinion of licensed psychologist Elaine Tripi, Ph.D., the Board finds that the Veteran's disorder warrants a rating of 70 percent for the entire period on appeal. However, it finds that the preponderance of the evidence is against a rating in excess of 70 percent at any time relevant to the claim. The Veteran's rating is assigned under Diagnostic Code 9440. 38 C.F.R. § 4.130. The disability is rated using the General Rating Formula for Mental Disorders (General Formula). Under that Formula: A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech 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; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). We note that the initial March 2019 VA examination was largely focused on whether the Veteran had a psychiatric disorder, if so which one, and was it related to service-connected disability. By contrast, Dr. Tripi's March 2019 reports, a mental disorders disability benefits questionnaire (DBQ) and an accompanying psychological assessment, reflect that doctor's considered opinion as to diagnosis, etiology and functional impairment. In short, she explains that the Veteran's psychiatric disability causes significant occupational and social impairment and indeed results in deficiencies in most areas. All psychiatric symptoms were attributable to the service-connected disorder, which Dr. Tripi characterized as generalized anxiety disorder with depression. Relative to the 70 percent rating criteria, Dr. Tripi's DBQ reflects the following symptoms: suicidal ideation; 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); difficulty in adapting to stressful circumstances (including work or a worklike setting) and inability to establish and maintain effective relationships. Other symptoms included depressed mood, anxiety, chronic sleep impairment, panic attacks weekly or more often, flattened affect and disturbances of motivation or mood. In the accompanying psychological assessment, Dr. Tripi notes the Veteran has worked at the VA since 2008 as a Vocational Rehabilitation program specialist. From 1991 to 2008, the Veteran worked at VA in various jobs. Current problems included difficulty staying asleep, often waking with wrist pain or following waves of service-related nightmares and dreams. He has intermittent weekly intrusive and involuntary thoughts regarding his time in the Navy. He reported flashbacks. January is an anniversary for him. The Veteran reported he felt emotional numbness and a sense of doom. None of his therapy has helped and he feels alienated and separated from others. He reported past suicidal ideation. He also reported frequent bouts of irritability and anger, not always related to issues at hand. He reported bouts of concentration difficulties, particularly at home. He has many unfinished projects. He is hypervigilant, prefers to keep to himself with his back to the wall, keeps weapons and often scans his environment. He exhibits startled response. Dr. Tripi found that the following symptoms caused severe social, personal and occupational impairment: bouts of difficulty concentrating, bouts of generalized anxiety disorder with occasional panic attacks, flashbacks/intrusive thoughts, sleep disturbance, overwhelming feelings of anger and sorrow with crying spells, being withdrawn and bouts of depression/anxiety, moderately severe to severe. No psychiatric medications were noted. Dr. Tripi diagnosed generalized anxiety disorder with depression and noted the Veteran's multiple service-connected medical problems. She urged the Veteran to seek individual and or group therapy, and to be evaluated for psychotropic medication. She noted he was struggling to stay at his job due to his symptomatology. Consistent with this report, the Veteran testified in detail before the undersigned that he has daily flare-ups particularly related to dealing with people. He prefers to be alone with his dog and his wife. He noted that in his job, people get angry with him for things that are not his fault. This is because he is the first person they speak to at VA when they come in with a problem. That can cause him to have a flare up of symptoms. This affects his behavior at home with his wife, makes him depressed and, even has resulted in suicide tendencies. He noted he is an emotional person. He discussed problems he had with relationships in the early years following service and felt that the problems were due to his as yet undefined psychiatric disorder. He simply does not go to social gatherings because he does not want to have big disagreements with individuals. The Veteran further testified that he should not be doing his job, but he cannot just quit. He should be in supply and logistics. He was promoted when he moved and while he has been efficient he finds the people he encounters in this position much more difficult. He reported he uses alcohol and drugs to self-medicate. As to suicidal thoughts, he reported he has not attempted suicide per se, but it comes to mind. While he has not attempted it, he has sat down with a gun in his closet. He also owns 'a lot of guns'. In June 2021, the Veteran submitted an unofficial transcript from Oakland University showing he took a course in 2019, took some others in 2007 and 2008, and had transfer credits. It was noted he was in 'good standing.' Also submitted was a June 2021 letter from Susie Kamen, LMSW, showing that the Veteran and his wife engaged in therapy discussing past trauma in November 2018 and while they were motivated to continue therapy the sessions were stopped in 2019 due to health issues of another facilitator of the program. Resolving reasonable doubt in the Veteran's favor, the severity, frequency, and duration of the Veteran's disorder more closely approximate occupational and social impairment with deficiencies in most areas. We find Dr. Tripi's opinion to be of great probative weight as it is well-supported and consistent with the record. She has provided a sound rationale for her conclusions, and we note her credentials in this field as reflected in her curriculum vitae. It is at least as probative as to the degree of impairment and specific manifestations as the 2019 VA examination. A 70 percent rating is warranted. In this regard, the Board has applied the "holistic analysis" in "assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected mental disorder. Bankhead, 29 Vet. App. at 22. The Board has considered the objective medical evidence, including treatment records and examinations, and testimony from the Veteran. Further, the Board acknowledges the importance of suicidal ideation or thoughts in the rating criteria. Id. These were noted by Dr. Tripi and explored and described by the Veteran in his testimony. In Bankhead, suicidal ideation was described as a continuum, at one end with passive suicidal ideation such as wishing you would not wake up and active suicidal ideation with plan on the other end, but that both were considered suicidal ideation in the 70 percent rating. The Court found in Bankhead that in some cases the finding of suicidal ideation may cause the level of social and occupational impairment described in the 70 percent rating. Such is the case here. The next question for the Board is whether the Veteran's disability meets or more nearly approximates the criteria for a higher rating. Specifically, a 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or own name, warrants the maximum, 100 percent disability rating. The "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. The criteria for a rating in excess of 70 percent are not met or approximated at any time. The Veteran does not urge that he has the aforementioned symptoms. He has not endorsed total occupational and social impairment or relevant signs of the 100 percent rating criteria. Moreover, he is impaired in his occupational capacity but admittedly remains working full time in the vocational field at VA. No evidence reflects that he meets or approximates the criteria for a 100 percent rating. Neither the examinations, nor the contemporaneous treatment records, show 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; memory loss for names of close relatives, own occupation, or own name. Rather, the examinations and treatment records reflect generally that these manifestations are not present. See, e.g., April 2018 negative depression screen in VA treatment records. No examiner has found symptoms compatible with total occupational and social impairment. Also, we have adjudged his discussion regarding suicidal thoughts to be candid and indicative of suicidal ideation certainly, but not suggestive of manifesting persistent danger of hurting himself. We note that no trained mental health examiner has found that to be the case. Thus, although the record overall reflects severe impairment, it does not remotely suggest find total impairment as required for a 100 percent rating. The criteria for a 100 percent rating under DC 9440 are not met or approximated. The Board has considered all psychiatric symptoms in reaching the above conclusions. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In reaching such determination, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against a rating in excess of 70 percent. The benefit of the doubt doctrine is not applicable, and his claim must be denied as to a rating in excess of 70 percent. 38 C.F.R. §§ 4.3, 4.7. The degree of impairment has remained uniform at 70 percent throughout the appeal period. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent rating for scar, residual status post right inguinal hernia repair (previously rated under DC 7338), is remanded. There is pre-decisional duty to assist error that must be corrected on remand with regard to this claim for increased rating. The February 2019 VA scars examination found no functional limitations or pain despite the assertions to the contrary. The examiner made substantial reference to the fact that they asked the Veteran for and were not provided a report of a 2015 laparoscopy. It seems the examiner asked the Veteran for the report because he stated he was told he had scar tissue at the scar site. The VA examiner stated the Veteran only provided the discharge summary but that they wanted the other records containing specific information "necessary for this compensation & pension exam." The Veteran argued at the hearing that the examination was inadequate. Here, we must agree with regard to the increased rating claim, it was inadequate as it did not identify or include assessment of all of the alleged manifestations of the disability. This constitutes a pre-decisional duty to assist error. The matter is REMANDED for the following action: 1. Obtain any outstanding relevant private treatment records, to include the records specifically identified by the February 2019 VA examiner, including any additional available records related to the 2015 laparoscopy. (Continued on the next page) 2. Schedule the Veteran for VA examinations by appropriate clinicians to determine the nature and severity of his scar, residual status post right inguinal hernia repair throughout the period on appeal and report all signs and symptoms necessary for rating the disorder, including any truss or belt problems and sexual difficulties caused by the disability. Any tests or studies deemed necessary should be conducted, and the results should be reported in detail. A copy of the entire claims file should be provided to the examiners and a note that it was reviewed should be provided in their reports. K. Conner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.