Citation Nr: 21073165 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-36 745 DATE: December 7, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for painful motion and limitation of abduction due to left hip strain is denied. Entitlement to an initial rating in excess of 70 percent for major depressive disorder is denied. REMANDED Entitlement to an increased rating for loss of flexion due to left hip strain is remanded. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran's painful motion due to left hip strain is rated as 20 percent disabling, which is the maximum schedular rating permitted for impairment of the thigh. 2. The severity, frequency, and duration of the Veteran's major depressive disorder symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for painful motion due to left hip strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5253. 2. The criteria for a disability rating in excess of 70 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 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on active duty in the United States Army from November 1985 to September 1988. The appellant was discharged "under honorable conditions" for "misconduct abuse of illegal drugs." The rating decision on appeal was issued in August 2020 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. Increased Rating 1. Entitlement to an initial rating in excess of 20 percent for painful motion due to left hip strain The Veteran seeks an increased rating for his left hip disability. The Board notes that an increased rating for limitation of extension of the left thigh was denied in an August 2020 supplemental statement of the case. The Veteran has appealed that decision. The issues of entitlement to an increased rating for limitation of flexion of the left hip is discussed in the remand section below. Under Diagnostic Code 5253, a maximum 20 percent rating is warranted for limitation of abduction, motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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. VA and private treatment records reveal a long history of left hip pain complaints. In December 2016, the Veteran reported worsening left hip pain due to a tumor. In March 2017, the Veteran reported continuing left hip pain. The Veteran was afforded a VA examination in June 2016. The Veteran reported left hip pain. He reported flare-ups in the left hip, which he described as pain and tingling. He indicated difficulty climbing, standing, and walking for long periods. Initial range of motion revealed flexion to 80 degrees, and abduction to 20 degrees in the left hip. Pain was noted on examination which caused functional loss in flexion, abduction, and external rotation. While the examiner noted that the Veteran does have flare-ups of his left hip disability, the examiner did not elicit information on the frequency and severity of the flare-ups, and whether they cause any functional limitation beyond what the Veteran normally experiences. The Veteran was afforded a VA examination in December 2019. The Veteran reported pain and weakness in the left leg, which caused him to limp more. The Veteran described weekly flare-ups of his nonservice-connected right thigh. Initial range of motion revealed flexion to 45 degrees, and abduction to 15 degrees. Pain was noted with all exhibited range of motion. Additional functional loss was noted with repetitive use testing, with flexion limited to 40 degrees, and abduction limited to 10 degrees. As the Veteran apparently did not report flare-ups in the left thigh, no estimated range of motion was provided for the left thigh by the examiner. Mildly reduced 4/5 strength was noted, with no atrophy or ankylosis indicated. As the Veteran is in receipt of the highest schedular rating for impairment of the thigh, there is no basis to award a higher rating for limitation of abduction. While the 2016 and 2019 VA examinations do not reflect all findings as directed by Correia, the Board finds no prejudice to the Veteran with respect to impairment of the left thigh because he is in receipt of the maximum rating based on limitation of abduction. As the Veteran already has the maximum schedular disability rating, the appeal is denied. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a rating in excess of 20 percent for impairment of the thigh to due limitation of abduction. 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. 2. Entitlement to an initial rating in excess of 70 percent for major depressive disorder The Veteran seeks an increased rating for major depressive disorder. Under the General Formula for Mental Disorders (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); 38 C.F.R. § 4.130. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. 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 Veteran underwent a clinical psychological evaluation by the Social Security Administration (SSA) in April 2013. The Veteran reported experiencing depressed mood and difficulties with concentration. On examination, he was neatly dressed, cooperative. He denied hallucinations, delusions, or paranoid thoughts. The Veteran described symptoms suggesting alcohol and cocaine dependence. The examiner found the Veteran would have functional difficulties in communication, self-direction, work skills, and work tolerance. The Veteran underwent a clinical psychological evaluation by the Social Security Administration in May 2014. The Veteran reported he was being treated for depression and anxiety. The clinician noted a history of three suicide attempts, two in the 1990s and a third at an unspecified later point. The Veteran reported nightmares and flashbacks. He described avoidant behavior, hypervigilance, and an exaggerated startle response. He was not overtly paranoid, but the clinician found that he may be somewhat suspicious of others and was withdrawn socially. A history of suicidal ideations and attempts was noted, but the Veteran was not suicidal on examination. The clinician diagnosed major depressive disorder and PTSD. The Veteran was afforded a VA examination in May 2016. The Veteran reported that he had been clean of alcohol and drugs fro the previous 6 months. The examiner noted a longstanding history of substance use since 1985. While a symptom of chronic sleep impairment was noted by the examiner, she found that no formal psychiatric diagnosis was warranted. VA treatment records show ongoing mental health treatment. In August 2017, the Veteran presented for a medical assessment. He complained of difficulty staying asleep, sleeping about 3 hours per night, irritability, and anger. He reported past suicidal attempts in the 1990s and indicated suicidal thoughts in November 2016 when he was thinking to jump in the river. In March 2018, the Veteran presented for an individual therapy consult. The Veteran reported he continued to experience distressing memories, avoided loud noises and triggers, and endorsed sadness and depression. He indicated that he felt connected to his wife, but he lacked other sources of emotional and social support. The Veteran was easily started, and he reported poor concentration and memory. The Veteran submitted a private psychiatric evaluation by Dr. Henderson-Galligan dated April 2018 in support of his claim. The Veteran reported self-medicating with alcohol and drugs. The clinician noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks more than once a week, near-continuous panic or depression affecting the ability to function, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining work and social relationships, difficulty in adapting to stressful circumstances, impaired impulse control, persistent delusions or hallucinations, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living. On examination, the Veteran's mood was anxious and nervous, affect was restricted, and he was described as suspicious and rather paranoid. Overall, the clinician assessed occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. The Veteran was afforded a VA examination in December 2019. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships. Mental status examination showed appropriate and cooperative behavior, fair hygiene, angry mood, and dysthymic affect. The Veteran denied auditory or visual hallucinations, or suicidal or homicidal ideation, intent, or plan. Insight was fair, and judgment was age-appropriate. The examiner diagnosed PTSD and major depressive disorder. Overall, the examiner found occupational and social impairment with reduced reliability and productivity. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. After a review of the evidentiary record, the Board finds entitlement to a rating in excess of 70 percent is not warranted. VA and private treatment records, the December 2019 VA and April 2018 private examinations, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 70 percent rating, including suicidal ideation, depression, difficulty adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships. The record does not reveal gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, or disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board notes that the Veteran expressed suicidal ideation on several occasions, which is indicative of 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 regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during the December 2019 VA examination. Further, prior suicide attempts in the record appear to have occurred in the 1990s, well before the period on review. The Board finds that the Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas. The April 2018 private psychiatric evaluation by Dr. Heather-Galligan determined that the Veteran's overall level of social and occupational impairment was best described as "Occupational and social impairment with deficiencies in most areas", consistent with the current 70 percent rating. The December 2019 VA examiner determined that the Veteran's overall level of social and occupational impairment was best described as 'Occupational and social impairment with reduced reliability and productivity.' despite the symptoms identified on the mental status examination. This is consistent with a 50 percent rating. These assessments are probative as the examiners reviewed the file and performed clinical interviews and examinations in conjunction with these assessments regarding the severity of the Veteran's disability. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. REASONS FOR REMAND 1. Entitlement to an increased rating for loss of flexion due to left hip strain is remanded. The appeal is remanded to correct pre-decisional errors in VA's duty to assist. The Veteran underwent a VA examination for his left hip disability in December 2019. This examination report does not include all the required testing pursuant to Correia v. McDonald, 28 Vet. App. 158, 166 (2016). While the examination noted pain on passive and nonweight-bearing testing, it did not indicate the results of the range of motion testing. To be compliant with Correia, an examiner must test range of motion for pain on both active and passive motion. The VA examiner must also include the results of the range of motion testing. See Correia v. McDonald, 28 Vet. App. 158 (2016). This was not accomplished here, as such a new VA examination compliant with Correia is needed. 2. Entitlement to a total disability based upon individual unemployability (TDIU) is remanded. The Veteran also raised entitlement to TDIU as part and parcel of the increased rating claims in the March 2021 VA Form 10182. Rice v. Shinseki, 22 Vet. App. 447 (2009). Under the AMA system of appeals, in order for the Board to take jurisdiction over a claim for a TDIU due to the disability on appeal and for the holding in Rice to apply, the evidence of unemployability must: (1) be submitted prior to the AOJ decision or during an applicable 90-day evidence submission period; and (2) pertain to the period on appeal. In this case, the Veteran (1) submitted evidence of unemployability during an applicable 90-day submission period, and (2) the evidence pertains to the period on appeal. As such, the Board concludes that a claim of TDIU has been included in this claim on appeal. The Veteran's TDIU claim is inextricably intertwined with his increased rating claim; thus, adjudication of the matter is deferred. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left hip strain. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (CONTINUED ON NEXT PAGE) In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. Any additional functional loss due must be reported by the examiner in terms of additional range of motion loss. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Lauritzen, 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.