Citation Nr: 21073203 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-43 052 DATE: December 7, 2021 ORDER Entitlement to an increased rating of 10 percent for a surgical scar of the lumbar spine from June 26, 2012 to March 18, 2017 is granted. Entitlement to a rating in excess of 50 percent for major depressive disorder (MDD) prior to March 20, 2017 is denied. Entitlement to an increased rating of 70 percent, but no higher, for major depressive disorder (MDD) with sleep impairment and anxiety from March 20, 2017 to October 1, 2019 is granted. REMANDED Entitlement to a rating in excess of 20 percent disabling from June 26, 2012 to March 18, 2017, and to a rating in excess of 40 percent thereafter for a low back disability, described as thoracolumbar myofascial syndrome of the lumbar spine with a laminectomy, discectomy, and fusion, is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. For the period on appeal, the Veteran's surgical scar of the lumbar spine has been painful. 2. Prior to March 20, 2017, the Veteran's MDD manifested with symptoms most closely analogous to occupational and social impairment with reduced reliability due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; impaired judgement; disturbances of mood; and difficulty in establishing and maintaining effective work and social relationships. 3. From March 20, 2017 to October 1, 2019, the Veteran's MDD manifested with symptoms most closely analogous to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, including passive suicidal thoughts; however, at no point during this period or the period after did the condition manifest total occupational and social impairment. CONCLUSIONS OF LAW 1. For the period on appeal, the criteria for a 10 percent rating for a painful surgical scar has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804. 2. Prior to March 20, 2017, the criteria for an evaluation in excess of 50 percent for MDD, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9434. 3. From March 20, 2017 to October 1, 2019, the criteria for an increased evaluation of 70 percent for MDD, but no higher, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Air Force from August 2006 to March 2007, and the United States Army from July 2008 to June 2012. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a June 2017 rating decision, the Veteran's evaluation for his back disability was increased from 20 percent disabling to 40 percent disabling effective March 18, 2017. Additionally, the evaluation for the Veteran's lumbar scar was granted at 10 percent effective March 18, 2017. Then in a May 2020 rating decision, the evaluation for the Veteran's MDD was increased to 70 percent effective October 1, 2019. There was some confusion in the record as to whether or not the Veteran wanted a hearing. Therefore, the Veteran was contacted, and he stated he no longer wanted a hearing. See BVA Letters dated September 2021 and November 2021. As such, the Board proceeds to adjudicate the claims at issue. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although the recorded history of a particular disability should be reviewed in order to make an accurate assessment under the applicable criteria, the regulations do not give past medical reports precedence over current findings. Id. The Court has held that staged ratings are appropriate for initial rating and increased rating claims when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an increased rating of 10 percent for a surgical scar of the lumbar spine from June 26, 2012 to March 18, 2017 is granted. The Veteran contends that his surgical scar of his lumbar spine was painful since he filed his claim. He specifically stated that his surgical scar was sore to the touch and that he was often bothered by wearing jeans or using a belt when fitted around the waist. See NOD received April 2014. The Veteran is currently rated at 10 percent for his service-connected painful surgical scar effective March 18, 2017, under Diagnostic Code 7804. From June 26, 2012 to March 18, 2017, the Veteran was rated noncompensable for his lumbar surgical scar under Diagnostic Code 7805. The relevant Diagnostic Codes for scars are summarized as follows: Under Diagnostic Code 7802, for scars, not of the head, face, or neck, that are not associated with underlying soft tissue damage, a 10 percent rating is warranted for area or areas of 144 square inches (929 square centimeters). 38 C.F.R. § 4.118, DC 7802. Under Diagnostic Code 7804, for scars that are unstable or painful, a 10 percent rating is warranted for one or two scars; a 20 percent is warranted for three to four scars; a 30 percent rating is warranted for five or more scars. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). Scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an additional rating under Diagnostic Code 7804, when applicable. 38 C.F.R. § 4.118, DC 7804, Note (3). Under Diagnostic Code 7805, other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800 to 7804 under an appropriate diagnostic code. 38 C.F.R. § 4.118, DC 7805. Considering all the evidence, the Board finds that a rating of 10 percent for a surgical scar is warranted since June 26, 2012, when the Veteran filed his claim. In July 2013, the Veteran had a VA examination and the examiner completed a Back (thoracolumbar Spine) Conditions Disability Benefits Questionnaire (DBQ). At the end of the spine DBQ, the examiner reported that the Veteran had a scar related to his back condition. The examiner noted that the scar was not painful or a total area of greater than 39 square cm. The examiner did not complete a full report or DBQ as to the scar. See VA Examination received July 2013. The Veteran filed a NOD in April 2014. He stated that he felt his surgical scar warranted a 10 percent evaluation. In explanation, he stated that there was pain on the scar site and around the scar site. He stated that he never told the examiner that he had no pain. He asserted that he had soreness to the touch. He was also bothered by belts or any pants that were fitted around the waist. See NOD received April 2014. Then the Veteran was afforded a VA examination in April 2017. The examiner completed a Scars/Disfigurement DBQ. The examiner provided diagnosis of a scar due to a laminectomy and fusion of the lumbar spine. The examiner found that the Veteran had one painful scar. He stated that the Veteran had dull pain and that he had pain where his pants or belt rubbed against his scar. The examiner noted that the Veteran's painful scar was not unstable. The scar measured 12 cm. in length and 2 cm. in width. The examiner did not note any limitation of function due to the scar. See C&P Examination received April 2017. The Veteran reported that his lumbar surgical scar was painful since soon after his filing and he was eventually found to have a painful scar at the April 2017 VA examination. The Veteran is competent to report symptoms and observations, such as a painful scar, because this requires only personal knowledge as it comes through one's senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). His report of a painful lumbar surgical scar is credible, as it is generally consistent with the evidence of record. To the extent the July 2013 spine VA DBQ rendered findings to the contrary, the evidence is, at minimum, in equipoise. However, the preponderance of the evidence is against a rating in excess of 10 percent. Under both versions of the skin regulations, ratings in excess of 10 percent under Diagnostic Code 7804 require the presence of three or more scars that are unstable or painful, which is not the case here. While Note (2) allows for an additional 10 percent rating where a scar is both unstable and painful, the Veteran's scar was not described as unstable. The Veteran's scar also did not involve underlying soft tissue damage. A higher rating for the Veteran's scarring is not supported by any other relevant Diagnostic codes. The Veteran did not have scarring on the head, neck, or face. The Veteran also did not have scarring equaling 929 square cm. Moreover, the scar is not shown to cause limited functioning or have any disabling effects. For all of the above-stated reasons, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's painful surgical scar from June 26, 2012 to March 18, 2017. In reaching this decision the Board considered the doctrine of reasonable doubt. 2. Entitlement to a rating in excess of 50 percent for MDD prior to March 20, 2017 is denied. See section 3 below. 3. Entitlement to a rating of 70 percent for MDD from March 20, 2017 to October 1, 2019 is granted. The Veteran's MDD is rated under Diagnostic Code 9434, 38 C.F.R. § 4.130. The Veteran is currently rated at 50 percent from June 26, 2012 to October 1, 2019, and at 70 percent afterwards. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted when there is 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 work like setting); and an inability to establish and maintain effective relationships. 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; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). The Board finds that a review of the records supports that the Veteran had an evaluation of 50 percent, but no higher, prior to March 20, 2017. Thereafter, a rating of 70 percent, but no higher, for MDD is warranted. After October 1, 2019, the Veteran has already been granted a rating of 70 percent, and no higher rating is warranted. In particular, the records do support that the Veteran has had serious, ongoing difficulties with MDD, including social and occupational impairment with passive suicidal thoughts since around March 20, 2017. Through that period the Veteran's symptoms are most closely aligned to the evaluation at 70 percent for MDD. For example, in July 2013, a VA medical examiner completed a Mental Disorders Disability and Benefits Questionnaire. See VA Examination received July 2013. The Veteran was cooperative and made appropriate eye contact. He had clear, logical, linear, coherent, and goal directed thought processes. He denied suicidal ideation and homicidal ideation as well as auditory or visual hallucinations. Id. The July 2013 examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran's symptoms included depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, disturbances of mood, and difficulty in establishing and maintaining effective work and social relationships. Id. In the April 2014 NOD the Veteran reported that he was very irritable and that his wife and him and been in physical fights. In April 2015, the Veteran had a mental health consultation at the VA. The Veteran was working at a pawn shop. He reported that his mental health issues were having a negative impact on his job and marriage. He reported anxiety, anxiety attacks, anger issues, and depression. The Veteran reported that he had not been on any mental health medications since discharge from service. The Veteran also reported substance abuse. However, he reported no current thoughts about self-harm and was judged a low risk for self-harm. See CAPRI received June 2017. On examination, the Veteran was casually dressed neatly groomed, cooperative, and easily engaged. He had normal speech, anxious and depressed mood, and coherent thoughts. The Veteran made appropriate eye contact and denied audiovisual hallucinations. He was not suicidal or homicidal. His insight and judgement were good. The VA provider prescribed the Veteran medications for his mood and insomnia. Id. Then the records noted that in January 2016, the Veteran called the crisis hotline. The Veteran stated that he had never thought of suicide until recently and denied any plan. He was not happy with his life, constant back pain, trouble sleeping, and uncontrollable anger. See CAPRI received June 2017. In January 2017, the Veteran had a mental health visit at the VA. The Veteran reported he was unemployed but actively looking for work. He was also in school studying to be a pharmacy technician. The Veteran was given patient health questionnaires for depression and anxiety. He had a score of 19 on the "PHQ-9" depression test. The scale noted that a score of 15 or more warranted treatment for depression using antidepressants, psychotherapy and or a combination of both. However, on the question, whether he thought he would be better off dead or hurting himself, the Veteran responded, "Not at all." As to anxiety, the Veteran also had a clinically high score meriting treatment for anxiety. Id. On examination, the Veteran was well groomed and dressed casually. He was polite and cooperative. He reported up and down moods. He had logical, and goal directed thoughts. He had no active suicidal or homicidal ideation. He had no hallucinations, delusions, or obsessions. Id. Then on March 20, 2017, the Veteran had another VA examination. The Veteran had symptoms including depressed moods, anxiety, panic attacks, chronic sleep impairment, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful situations. The examiner noted that the Veteran had passive thoughts of death when depressed but no active suicidal ideation with an intent or plan. See C&P Exam March 2017. The Veteran reported a domestic violence incident in the summer of 2016, as well as substance abuse. While the examiner opined that the Veteran had occupational and social impairment with reduced reliability and productivity, the Board noted that the examination appeared to support that the Veteran had some passive suicidal ideation. Id. Then in the August 2017 Form 9, the Veteran stated that he had daily difficulty with impulse control as well as interactions with the police due to his impulse control. He stated he was not able to make decisions or think logically like he used to be able to do. He reported that his children were afraid of him. The Veteran reported that he had not been able to hold down a job and was not able to establish any kind of effective relationship with anyone. He reported hearing negative thoughts often and that he was completely unable to function as a normal person. See Form 9 received August 2017. Then in October 2017, the Veteran had a psychological evaluation where he reported passive suicidal thoughts all the time. See Medical Treatment Records- Furnished by SSA received October 2017. The Board finds that since around March 20, 2017 the evidence supported that the Veteran has had serious, ongoing difficulties with MDD, including social and occupational impairment with passive suicidal thoughts. See C&P Exam March 2017. He also reported in August 2017 hearing negative thoughts and being unable to establish any effective relationships with anyone. See Form 9 received August 2017. While the Veteran has had ongoing and serious difficulty with MDD, he does not present with total impairment to daily functioning. In order to meet the level of 100 percent impairment for a mental disorder, a veteran must have symptoms like gross impairments 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. See 38 C.F.R. § 4.130. While certainly severe, the manifestations of the Veteran's service connected MDD do not rise to the level of a total occupational and social impairment for the purposes of 38 C.F.R. § 4.130. His impairments, while touching on many areas of his life, are not of such severity to interfere with routine functions necessary for daily life. The Veteran does not appear to have gross impairment in thought processes or communication. The Veteran reported only passive suicidal ideation and negative thoughts but denied that he had actual intent to commit suicide. As such, after a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 70 percent evaluation, but no higher, for his MDD from March 20, 2017 to October 1, 2019. In conclusion, considering the benefit of the doubt, the Board finds that a rating of 70 percent is appropriate for the Veteran's service-connected MDD from March 20, 2017 to October 1, 2019; however, the preponderance of the evidence of record fails to support a rating in excess of 70 percent. As such, a 70 percent evaluation is warranted for the Veteran's MDD, but no higher evaluation is warranted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent disabling from June 26, 2012 to March 18, 2017, and to a rating in excess of 40 percent thereafter for a low back disability is remanded. Although further delay is regrettable, a remand is necessary for an adequate VA opinion. The Board cannot make a fully informed decision regarding the Veteran's claim of entitlement to an increased rating for his low back disability as the VA examinations of record are inadequate. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court noted that for a joint examination to be adequate, the examiner "must express an opinion on whether pain could significantly limit" a veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Furthermore, the Court stated that the examiner must "obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment [resulting from flare-ups] from the veterans themselves." Sharp, 29 Vet. App. at 34. The examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of veterans," and the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups." Id. at 10. In the October 2019 VA examination an estimation of additional functional limitation of the Veteran's low back disability was not provided. The examiner stated that they could not express an opinion and explicitly did not consider the Veteran's lay statements of record regarding additional functional impairment. In particular, the examiner noted that the Veteran's reports were subjective only. See C&P Exam received October 2019. Accordingly, a new VA examination is necessary to assess the severity of the Veteran's low back disability that adequately considers functional loss and additional loss of range of motion due to pain on use or during flare ups. 2. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is remanded. As the Veteran is asserting entitlement to an increased rating for his service-connected back disability, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issue. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded along with the Veteran's claim for entitlement to an increased rating for his back disability. The matters are REMANDED for the following action: 1. Obtain any missing VA or private treatment records. 2. Afterwards, schedule the Veteran for an examination by an appropriate clinician to determine the current level of severity of his service-connected back disability. The Veteran's claims file and a copy of this remand should be provided to the examiner and the examination report should reflect that these items were reviewed. 3. The examiner should discuss in detail with the Veteran whether, or not, the Veteran reports having flare ups of back pain or limitation. The examiner should provide a detailed discussion in his examination of the Veteran's reports. The examiner should also discuss any inconsistencies with previous reports where the Veteran reported having flare ups of back pain or limitation. 4. The examiner should also discuss in detail whether, or not, the Veteran reports pain on increased use or repeated use of his back. Again, the examiner should provide a detailed discussion in his examination of the Veteran's reports. 5. The examiner should provide all information required for rating purposes, to specifically include range of motion in the spine in active motion, passive motion, weight-bearing, and non-weight-bearing. Further, the examiner must indicate if movement is limited by pain, and if so, at what point. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner must report whether there is a lack of normal endurance or functional loss due to pain and pain on use, including that experienced during flare ups; whether there is weakened movement, excess fatigability, incoordination; and the effects of the service-connected disabilities on the Veteran's ordinary activity, including his ability to work. 6. The examiner should also review the VA examinations containing range of motion findings pertinent to the Veteran's back conducted during the course of the appeal. If the examiner is unable to provide the requested opinion in this case, he or she should clearly explain the basis for this decision. 7. The examiner should identify the extent of the Veteran's functional loss during flare ups and offer range of motion estimates based on that information. If the examiner cannot provide the above-requested opinion without resorting to speculation, he or she should state whether all procurable medical evidence had been considered, to specifically include the Veteran's description as to the severity, frequency, duration of the flare ups and his description as to the extent of functional loss during a flare-up and after repetitive use over time; whether the inability is due to the limits of medical community or the limits of the examiner's medical knowledge; and whether there is additional evidence, which if obtained, would permit the opinion to be provided. 8. The VA examiner should also provide any findings necessary to consider the claim pursuant to the new musculoskeletal regulations. 9. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resort to mere speculation, the examiner must fully explain why this is the case and identify what additional evidence, if any, would allow for a more definitive opinion. 10. After completing all indicated development, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is remanded to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, C. Parnell 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.