Citation Nr: 21067425 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 18-36 387 DATE: November 4, 2021 ORDER New and material evidence has been received, and the claim for service connection for a left knee disability is reopened. New and material evidence has been received, and the claim for service connection for a low back disability is reopened. A 70 percent rating, but no higher, for persistent depressive disorder is granted. REMANDED Service connection for a left knee disability is remanded. Service connection for a low back disability is remanded. A total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A June 2004 rating decision denied service connection for left knee and low back disabilities. The Veteran did not file an appeal or submit additional evidence to substantiate the claims within one year of notification. 2. A March 2015 rating decision continued to deny service connection for left knee and low back disabilities. The Veteran did not file an appeal or submit additional evidence to substantiate claims within one year of notification. 3. Evidence received since the March 2015 rating decision became final raises a reasonable possibility of substantiating the claims for service connection for left knee and low back disabilities. 4. The Veteran's service-connected psychiatric symptoms more nearly approximated occupational and social impairment with deficiencies in most areas throughout the entire period on appeal. CONCLUSIONS OF LAW 1. The June 2004 and March 2015 rating decisions denying service connection for left knee and low back disabilities are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156, 20.1103. 2. New and material evidence sufficient to reopen the claims for service connection for left knee and low back disabilities has been received. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a 70 percent rating, but no higher, for persistent depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.126, 4.130. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1975 to January 1981. This case is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) regional office in January 2017 and March 2017. In July 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. A copy of the hearing transcript is in the claims file. New and Material Evidence for Left Knee and Low Back Claims The Veteran seeks to reopen previously denied claims for service connection for left knee and low back disabilities. The Board finds that VA has received new and material evidence sufficient to reopen the claims. Generally, a claim denied in a final unappealed VA decision may not be reopened and allowed. 38 U.S.C. § 7105(c). However, if new and material evidence is received, VA shall reopen and review the former disposition of the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). In any case involving a prior final denial, the Board must address whether the evidence is sufficient to reopen the claim before addressing the merits, regardless of whether the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239-40 (1995). "New" evidence means existing evidence not previously submitted to agency decisionmakers, while "material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In deciding whether evidence is new and material, the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273 (1996). The threshold for determining whether evidence is new and material is low. Shade v. Shinseki, 24 Vet. App. 110, 116-18 (2010) (reopening is warranted if the new evidence, when considered in conjunction with the old evidence, would at least trigger VA's duty to assist the Veteran). However, evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to VA. Anglin v. West, 203 F.3d 1343, 1345 (Fed. Cir. 2000). In determining whether evidence is new and material, the credibility of the evidence is generally presumed. Justus v. Principi, 3 Vet. App. 510 (1992). In this case, the AOJ originally denied service connection for left knee and low back disabilities in a June 2004 rating decision. Essentially, the AOJ found no evidence of a current disability for either the knee or the back. The Veteran received notice of the 2004 rating decision, but he did not appeal or submit additional evidence to substantiate either claim within one year of notification. That rating decision is final. The AOJ continued to deny service connection for both disabilities in a March 2015 rating decision. The AOJ again found no evidence of a left knee disability. With respect to the low back, the AOJ found no nexus between the Veteran's current diagnosed disability and service. He received notice of the 2015 rating decision, but he did not appeal or submit additional evidence to substantiate either claim within one year of notification. That rating decision is also final. Evidence received since the March 2015 rating decision became final includes VA treatment records and an August 2016 letter from "Dr. P.P.N.," a private physician. The VA treatment records show ongoing treatment for chronic knee and back pain. These records include new diagnoses that postdate the 2015 rating decision. One such record from June 2016 also indicates these diagnoses "could possibly date back to [the] patient's years of service given the type of work he was required to do." See VA Rheumatology Consultation. Additionally, the August 2016 letter reflects that Dr. P.P.N. treated the Veteran for knee and low back pain from 1989 to 1997. Dr. P.P.N. also noted that the Veteran reported having these symptoms since service. The evidence above was not before the AOJ at the time of the prior final rating decisions. It raises a reasonable possibility of substantiating both claims. The Board finds that new and material evidence has been received. Accordingly, the claims for service connection for left knee and low back disabilities are reopened. Increased Rating for Persistent Depressive Disorder The Veteran seeks a rating higher than 50 percent for a service-connected mental disorder. After careful review, the Board finds that he is entitled to a 70 percent rating. Disability evaluations are determined by the application of VA's Schedule of Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, a higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under VA's General Rating Formula for Mental Disorders (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. 38 C.F.R. § 4.130. 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. Id. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Id. In applying 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 ratings. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The most probative evidence in this case comes from a March 2019 VA examination. The 2019 examiner interviewed the Veteran, reviewed his medical records, and provided detailed clinical findings regarding his reported symptoms and level of occupational and social impairment. This examination supports a 70 percent rating under the General Formula. At the examination, the Veteran reported he had been "going through a nervous breakdown" in the last few weeks. He explained that he was overwhelmed and "just lost it" after recently seeing a pain doctor at VA. According to the 2019 examiner, he appeared dysthymic and anxious. He was neatly dressed and groomed. He was oriented to person, place, time and situation. His speech, thought content and thought process were all within normal limits. He denied hallucinations and delusions. He denied suicidal ideation, intent or plan, but admitted to experiencing passive death wishes. He had no history of past suicide attempts or psychiatric hospitalizations. He denied homicidal ideation, intent or plan. He showed adequate judgment and insight. The Veteran reported that he had continued to work parttime in IT since his last examination two years earlier. However, he stated that he worked "very rarely" and he had not worked at all over the past two months. The 2019 examiner remarked that "he would likely struggle with fatigue, low motivation, decreased concentration, low frustration tolerance, irritability and tendency to become easily overwhelmed" if he returned to work fulltime. As for social history, the Veteran reported that he had been married for 20 years. He described his marital relationship as comfortable, but noted fights and disagreements. He also noted having conflicts with other family members. He reported seeing one close friend regularly, but stated he rarely participated in other social activities. The 2019 examiner documented the following symptoms listed as criteria under the General Formula: depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. Additionally, the examiner noted that the Veteran experiences anxiety whenever he leaves the home, decreased appetite, significant fatigue, periods of hopelessness, feelings of helplessness, irritability, and restlessness. Overall, the 2019 examiner determined that the Veteran's service-connected mental disorder has caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. This level of impairment corresponds with a 70 percent rating under the General Formula. The Board finds that this characterization of the Veteran's social and occupational impairment is well-supported by the 2019 examiner's findings, as well as the other evidence of record, including the VA treatment records and the Veteran's lay statements. Notably, VA treatment records show that the Veteran presented to the emergency room in February 2019, where he received outpatient counseling for an acute stress reaction. He reported feeling depressed, anxious and overwhelmed due to multiple stressors related to his health, family and marital issues, and finances. He denied any symptoms of psychosis or mania, but reported having chronic depression symptoms. He adamantly denied any suicidal or homicidal thoughts, plans or intent. At the July 2021 hearing, the Veteran testified that he had the same symptoms noted on the March 2019 examination, at the same level of intensity and frequency, since at least 2017, when he filed his increased rating claim. He also testified that he misunderstood the 2019 examiner's questions about suicidal ideation. He indicated that he had fleeting thoughts of suicide when depressed. He explained, however, that he "never had the thought to the point where [he was] making plans" of suicide. The Board notes that "a veteran's thoughts of his or her own death" alone may be sufficient to establish the presence of suicidal ideation under the General Formula. See Bankhead, 29 Vet. App. at 19. The Veteran stated at hearing that he sometimes goes three or four days without showering during depressive episodes. However, he noted that he brushes his teeth at least once a day. The Veteran also testified that he sees "vague shadows" in the corner of his eye during periods of heighted anxiety. However, he "know[s] there's nothing there." His attorney suggested these shadows are hallucinations. The Board finds the Veteran's testimony regarding his subjective symptoms credible. This testimony is generally consistent with the 2019 examiner's findings and information in the VA treatment records. It does not show that his mental disorder has caused total occupational and social impairment warranting a 100 percent rating under the General Formula. As discussed above, the Veteran has expressed suicidal ideation, which is associated with the 70 percent criteria. In some cases, suicidal ideation is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. See Bankhead, 29 Vet. App. at 19. However, the Board finds that the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level required for a 100 percent rating. Multiple VA treatment records and examinations show that he consistently denied having a plan or intent to harm himself or others during the appeal period. The Veteran does not argue otherwise. Similarly, the Veteran reported neglect of personal appearance and hygiene, which is also associated with the 70 percent criteria. However, the evidence does not show that he is intermittently unable to maintain minimal personal hygiene, as contemplated by the 100 percent criteria. By his own account, he brushes his teeth at least once a day even during depressive episodes. Moreover, multiple VA treatment records and examinations show that he was consistently adequately dressed and groomed. The Board finds that the Veteran's testimony about seeing "vague shadows" does not demonstrate the presence of persistent hallucinations or delusions, as contemplated by the 100 percent criteria. He testified that notices these shadows only during periods of heightened anxiety. In other words, he does not have these symptoms persistently. Furthermore, multiple VA treatment records and examinations show that he consistently denied hallucinations, delusions and other symptoms of psychosis. This evidence strongly suggests that any such symptoms are not persistent. In any event, the evidence does not show that the Veteran's service-connected psychiatric symptoms have caused total occupational and social impairment. For example, he reported at least parttime employment as an IT technician or computer systems engineer during the period on appeal. He remained married to his wife of more than 20 years and he reported having friends that he can talk to. VA treatment records also show that he reported having hobbies like growing orchids and painting. Accordingly, the Board finds that the Veteran's service-connected psychiatric symptoms more nearly approximated occupational and social impairment with deficiencies in most areas throughout the entire period on appeal. There is no remaining reasonable doubt to resolve in the Veteran's favor in this instance. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A 70 percent rating, but no higher, is granted. REASONS FOR REMAND Service Connection for a Left Knee Disability The Veteran contends that he has had left knee problems since service. The Board finds that remand to the AOJ for additional development is warranted. In March 2015, a VA examiner found that the Veteran did not have a currently diagnosed left knee disability. The 2015 examiner noted that while he was treated for a left knee problem in service, his "medical records were subsequently silent for the next 35 years." The examiner concluded that the claimed disability was less likely than not incurred in or caused by service. As noted above, more recent VA treatment records show diagnoses for the left knee. Specifically, a June 2016 rheumatology consultation note indicates that the Veteran has patellofemoral pain syndrome and early osteoarthritis of the knees, "which could possibly date back to [the] patient's years of service given the type of work he was required to do." Moreover, the August 2016 letter from Dr. P.P.N. notes treatment from 1989 to 1997 for knee pain, which the Veteran reported having since service. The 2015 examiner's opinion is based on the assumption that the Veteran did not have a diagnosed disability and he did not receive treatment for his knee for 35 years after service. The evidence above shows otherwise. See e.g. Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (an opinion based upon an inaccurate factual premise has no probative value). The 2015 examination is therefore inadequate to decide the claim. Remand for a new examination is necessary. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes the effort to provide a VA examination or obtain an opinion, it must ensure that the examination or opinion is adequate). On remand, the examiner must consider and discuss the evidence above, including the Veteran's lay statements regarding the onset and course of his symptoms. See Miller v. Wilkie, 32 Vet. App. 249, 259-60 (2020) (holding that a VA examiner "must address the veteran's lay statements to provide the Board with an adequate medical opinion"). Service Connection for a Low Back Disability The Veteran similarly contends that he has had low back problems since service. The Board finds that remand to the AOJ is warranted here as well. The March 2015 VA examiner diagnosed the Veteran with degenerative disc disease. The 2015 examiner explained that although he had episodes of low back pain during service, "medical records were subsequently silent for the next 35 years." Ultimately, the examiner determined that the disability was less likely than not incurred in or caused by service. Dr. P.P.N.'s 2016 letter indicates that the Veteran received treatment from 1989 to 1997 for low back pain, which he reported having since service. VA treatment records contain similar complaints of back pain since service. See e.g. March 2016 VA Physical Therapy Evaluation. The June 2016 rheumatology consultation note also reflects that the Veteran has osteoarthritis of the lumbar spine, "which could possibly date back to [the] patient's years of service given the type of work he was required to do." The 2015 examiner's opinion is based on the inaccurate assumption that the Veteran did not receive treatment for his back for 35 years after service. Reonal, 5 Vet. App. at 461. It is inadequate to decide the claim, and remand for a new examination is necessary. Barr, 21 Vet. App. at 311. On remand, the examiner must consider and discuss the evidence above, including the Veteran's lay statements regarding the onset and course of his symptoms. Miller, 32 Vet. App. at 259-60. TDIU The Veteran expressly raised the issue of entitlement to a TDIU on his June 2018 VA Form 9, Appeal to the Board. The Board has jurisdiction to adjudicate the issue as "part and parcel" of the increased rating claim on appeal here. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Remand to the AOJ for additional development is warranted. At hearing, the Veteran testified that he last made a "living wage" in November 2006, when he was "buying homes, fixing them up and then reselling them." This testimony is consistent with his VA Form 21-8940, Application for Increased Compensation Based on Unemployability, filed in November 2018. The Veteran also testified that he currently works, at least part-time, as an IT technician. He made similar statements during March 2017 and March 2019 VA examinations. VA treatment records likewise show that he reported employment as a computer systems engineer during the period on appeal. However, he did not list any employment along these lines on the November 2018 VA Form 21-8940. There is no other information on file regarding his current level of income, if any. VA will grant a TDIU, when the schedular rating is less than total, if the evidence shows that a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). A "substantially gainful occupation" generally means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Board finds that remand is necessary to determine whether the Veteran earned more than marginal income during the appeal period. On remand, the AOJ should ask the Veteran to complete and return an updated VA Form 21-8940, and conduct other development as needed to verify his income level and/or employment status. The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the claimed left knee and low back disabilities. After reviewing the claims file, the examiner(s) must provide an opinion on the following questions: (a.) Is it at least as likely as not (50 percent or greater probability) that the claimed left knee disability was incurred in service or is otherwise related to service? (b.) Is it at least as likely as not (50 percent or greater probability) that the claimed left knee disability became manifest within one year of separation? If so, what were the manifestations? (c.) Is it at least as likely as not (50 percent or greater probability) that the claimed low back disability was incurred in service or is otherwise related to service? (d.) Is it at least as likely as not (50 percent or greater probability) that the claimed low back disability became manifest within one year of separation? If so, what were the manifestations? In particular, the examiner must consider and discuss the Veteran's lay statements regarding the onset and course of his symptoms. These include the statements in the August 2016 letter from "Dr. P.P.N." and in the VA treatment records. 2. Review the medical opinions above to ensure substantial compliance with the Board's directives. Take any necessary corrective action. 3. Ask the Veteran to complete and return an updated VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Conduct other development as needed to verify his income level and/or employment status. (Continued on the next page) 4. Readjudicate the Veteran's claims. If any claim remains denied, issue a supplemental statement of the case, and allow the Veteran and his representative the opportunity to respond. Then return to the Board for further appellate review. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.Z. Wall, 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.