Citation Nr: 21076374 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 14-12 946 DATE: December 23, 2021 REMANDED Service connection for a psychiatric disorder, to include depression and anxiety. Service connection for degenerative disc disease (DDD) of the lumbar spine as secondary to the service-connected disability of back strain. Service connection for a right hip condition. Service connection for left hip condition. Whether the severance of service connection for radiculopathy of the right lower extremity was proper. Whether the severance of service connection for radiculopathy of the left lower extremity was proper. An initial rating in excess of 10 percent for right lower extremity radiculopathy. An initial rating in excess of 10 percent for left lower extremity radiculopathy. An effective date prior to June 15, 2012, for the award of a separate 10 percent rating for radiculopathy of the left lower extremity. An effective date prior to June 15, 2012, for the award of a separate 10 percent rating for radiculopathy of the right lower extremity. An increased disability rating in excess of 10 percent for osteoarthritic narrowing of the medial left knee joint space. An increased disability rating in excess of 10 percent for back strain. A total disability rating based on individual unemployability due to service-connected disability (TDIU). REASONS FOR REMAND The Veteran served on active duty from May 1982 to August 1992. This matter is on appeal from June 2011, May 2013, July 2014, and January 2015 rating decisions. Most recently, in an October 2020 decision, the Board remanded all the issues on appeal for further development. 1. Service connection for a psychiatric disorder, to include depression and anxiety. The Veteran contends that he has a current psychiatric condition secondary to the impact of his service-connected impairments. See 7/10/2020 Attorney representative brief; 8/8/2017 Attorney representative brief. In its prior, February 2018 remand, the Board explained that the instant claim is not a petition to reopen a prior claim of service connection for posttraumatic stress disorder (PTSD). The Board pointed to a February 2002 rating decision, which denied entitlement to service connection for PTSD as there was no verifiable stressor or diagnosis. The Veteran did not appeal that decision, and it became final. In May 2014, the Veteran filed a claim of service connection for an acquired psychiatric disability, to include as secondary to orthopedic disabilities. The Board noted in relevant part that because the claim arises from complaints related to different diagnoses, new and material evidence is not necessary to consider it. See Boggs v. Peake, 520 F.3d 1330 (Fed. Cir. 2008) (finding that a claim based on a new diagnosis is to be treated as a new claim, obviating the need for new and material evidence). Since the Board's last remand, neither the Veteran nor his informed counsel has provided any information which might indicate an intent to expand the scope of the claim to again include PTSD. As such, the scope of the claim remains limited to a psychiatric disorder other than PTSD. With regard to a condition other than PTSD, a VA examiner in December 2014 gave a negative opinion, but only on the basis that the Veteran was not diagnosed with depression. The VA examiner diagnosed anxiety, not otherwise specified (NOS), but found that condition to be based on partner relationship problems per a 11/13/2013 VA medical record. The December 2014 VA examiner is not fully adequate as it did not address earlier evidence, such as in September 2013, indicating a past history of anxiety with several episodes of anxiety and panic "in the past." The examiner's opinion, as stated, does not address whether the anxiety disorder, even if due to partner relationship problems at any particular point in time was initially caused by service or a service-connected condition. Hence, the opinion is incomplete. In August 2018, a VA examiner diagnosed anxiety NOS, in full remission. The examiner concluded the condition was less likely than not related to service or a service-connected disability. The examiner found no complaints or treatment in service. Also, the VA examiner found the Veteran's current anxiety disorder more proximately due to current situational stressors. The examiner found the present focus of the Veteran's concerns to be medical and physical conditions. The Board observes that this opinion is based on an incomplete history and is internally inconsistent. With regard to the history, the examiner found the STRs absent for any mental disorder during service. Yet, the STRs show he underwent a mental health evaluation in June 1992. A copy of the "write-up" noted in a June 1992 summary was not included in the file. (This will be addressed in the remand directives below.) Because the examiner's summary denies the existence of this June 1992 mental health evaluation, it is based on an incomplete history. It is also contradictory to the extent the examiner found the Veteran's anxiety disorder to be in full remission based on no current situational stressors causing avoidance or anxiety. The examiner went on to state the Veteran's current diagnosis of anxiety disorder was more proximate due to current situational stressors. The examiner identified the Veteran's "present focus" to be on medical and physical conditions. Because the medical and physical conditions appear to potentially include the service-connected disabilities and because the examiner's conclusions appear somewhat inconsistent, this opinion is inadequate. Remand is warranted to correct the inadequacies in the record. 2. Service connection for DDD of the lumbar spine as secondary to the service-connected disability of back strain. The Veteran is seeking service connection for DDD of the lumbar spine secondary to the service-connected low back sprain. He contends that as a result of the continual low back sprain paired with overcompensation for the left knee over decades, there must have been advancement of the breakdown of the spine in some fashion or degree. He argues that virtually every reputable website confirms that injury and disability of any weight-bearing joint can have negative effects on the alternate proximate weight-bearing joint, especially when magnified over a significant length of time. See 9/1/2020 Attorney brief. The Veteran also argues that severe lumbar strain and antalgic gait from the service-connected left knee contributed to the advancement of the degenerative of the spine. See 7/10/2020 Attorney brief. The question for the Board is whether the Veteran has a current disability that is secondary to the service-connected back strain. Multiple VA opinions have been offered on this question, but none of them fully addresses the complex medical questions raised. First, a VA examiner in March 2011 opined that the Veteran's mild osteoarthritic disc disease had no causal nexus with back strain occurring 19 years ago. Next, a VA examiner in May 2013 opined that the diagnosis of osteoarthritic degenerative disc disease had no causal nexus with the service-connected back strain. Then, in December 2013, a VA examiner opined that the condition was less likely than not related to service. The examiner reasoned that a medical record review showed that when discharged in 1992, the Veteran had experienced a back strain, (noted as mechanical back pain), and X-rays completed since that time had revealed degenerative joint disease of the lumbar spine with a diagnosis made in March 2011. The examiner noted that the Veteran denied, and there were no medical records documenting an injury to the lumbar spine since discharge, and there was no documentation of treatment for an ongoing back condition immediately after discharge. The examiner explained that arthritis would not be unusual in a person of the Veteran's age and is part of the aging process. The examiner noted that the Veteran's occupation as a builder after leaving service could also make him prone to back conditions. The examiner concluded that wear and tear on the back over the prior 30+ years, along with the aging process, more than likely resulted in the degenerative disc disease of the lumbar spine. This same VA examiner also opined that the condition was less likely than not proximately due to or the result of the Veteran's service-connected back strain. The examiner reasoned that the Veteran was discharged from active service in 1992, and his risk factors for this back condition included advancing age and occupation of construction, also obesity in which at one time since service his weight was over 200 pounds. In June 2018, a VA examiner likewise opined that the condition was less likely than not related to the service-connected back strain. This examiner reasoned that strains are muscular in nature, and they do not cause degenerative disc disease of the spine. The examiner observed that the Veteran was seen for a lumbar strain in 1991 which was noted to be better three days later, and three years after service he was noted to have degenerative changes. The examiner found the Veteran's risk factors for these changes to include advancing age, physically demanding activities/jobs after service, being overweight/obese, and smoking. The examiner also concluded that this would not be aggravated by a lumbar strain. The examiner explained that degenerative changes will worsen with advancing age and will worsen with activities that stress the back such as construction work, while being overweight or obese would stress the back. The examiner also stated that smoking also can lead to degenerative changes, and the Veteran had a long history of smoking. Finally, in February 2021, a VA examiner opined that the degenerative disc disease was less likely than not proximately due to or the result of the service-connected back strain. The examiner reasoned that lumbar spine degenerative joint disease is less likely than not secondary to joint aging and chronic overuse of the lumbar spine over duration of many years and is independent from the left knee joint condition. (The Board observes that this was likely a typographical error in the VA examiner's opinion, as it is clear the examiner meant "more likely than not.") The examiner reiterated that the degenerative disc disease of the low back is less likely than not proximately due to or the result of osteoarthritic narrowing of the medial left knee joint space (previously claimed as chronic left knee, secondary to tear of meniscus, status post arthroscopic surgery). While these VA examinations discussed various factors in the Veteran's history, none of them took notice of a private (non-VA) examination with x-rays in July 1993. That examination noted that he had complaints of low back pain in the right lumbar spine with difficulty breathing and moving. The x-rays showed spondylolisthesis L5; nonunion of lamina L5 with "spoll" separation; scoliosis 7 degrees; and L3 Schmorls node inferior aspect. The diagnosis was subluxation of L1 with a lumbar neuralgia complicated by hyperlordosis of the lumbar spine. In an accompanying July 1993 medical history questionnaire, the Veteran wrote that he had had the condition for "2 days", but answered "yes" where asked if he had this or similar conditions in the past. The July 1993 examination report notes treatment dates from July 1993 through September 1994. The Board observes that this July 1993 examination was conducted within one year of the Veteran's August 1992 separation from service. To this end, the December 2013 VA examiner inaccurately stated that there was no documentation of treatment for an ongoing back condition immediately after service. Clearly, the July 1993 x-ray contradicts this statement because (1) it is documented treatment within one year of service, and (2) it shows ongoing treatment for nearly a year. As such, neither the December 2013 VA examiner's opinion nor the other opinions is based on a complete medical history. It is a medical question to determine whether the complaints and x-ray findings in July 1993 represented the initial onset of the Veteran's degenerative disc disease. Because no medical examiner has addressed this question, remand for a new opinion is warranted. 3. Service connection for a right hip condition. 4. Service connection for a left hip. A VA examiner in May 2013 opined that the Veteran had pain in the hips due to multiple etiologies being osteoarthritis of the hips and radiculopathy of the lumbar spine with pain referred to the hips. The Board observes that pain alone, even without a diagnosis, can be service-connected. Since that time, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the term "disability" refers to a functional impairment, rather than the underlying cause of the impairment. Saunders v. Wilkie, 886 F.3d 1356, 1362 (Fed. Cir. 2018); see also Martinez-Bodon v. Wilkie, 32 Vet. App. 393, 398 (2020) (Saunders applies to any condition that results in "functional impairment of earning capacity," not just pain). A VA examiner in June 2018 gave an extensive rationale as to why the evidence made it less likely than not that osteoarthritis of the hips was due to the symptoms in service or a service-connected disability. However, the examiner did not address pain in the hips as identified by the May 2013 VA examiner. To the extent the May 2013 VA opinion may establish that the Veteran has pain due to degenerative disc disease of the lumbar spine, the claims of service connection for the hips are intertwined with that claim. Hence, the hip claims must be remanded pending resolution of the lumbar spine degenerative disc disease claim. 5. Whether the severance of service connection for radiculopathy of the right lower extremity was proper. 6. Whether the severance of service connection for radiculopathy of the left lower extremity was proper. Service connection for these two disabilities was granted in a May 2013 rating decision. The RO granted service connection as related to the service-connected back strain disability. In an April 2014 rating decision, the RO proposed to several service connection. The RO explained that VA examiners in May 2013 and December 2013 had opined that the radiculopathy was not due to the service-connected back strain, but was rather due to nonservice-connected degenerative disc disease. The Veteran's representative submitted argument in May 2014, but did not submit evidence or request a predetermination hearing. As such, the RO issued the July 2014 rating decision on appeal, which made the severance final effective on October 1, 2014. The Veteran's service treatment records (STRs) show treatment in July 1991 for back pain. A straight leg raise test was done at that time without difficulty, but he was noted to have sharp pain with bilateral leg raise. Also, in December 1991, he was seen for complaints of left leg numbness in the heel and calf with no back or butt pain; the assessment was neuritis. After service, the Veteran was examined by VA in May 1997, but he denied a history of radiation of pain down his legs. The evidence of record includes a December 2013 VA opinion establishing that the radiculopathy was less likely than not the result of the service-connected back strain because his risk factors for the lumbar radiculopathy included a back condition such as spondylolisthesis of the L5 with degenerative disc changes and the vacuum phenomenon. At present, the Veteran does not dispute that the radiculopathy is due to degenerative disc disease of the lumbar spine rather than the back strain. See 5/12/2014 Attorney representative brief. Rather, the Veteran maintains that the radiculopathy must have been aggravated by the service-connected low back strain, and the VA examiner did not find to a clear and unmistakable standard that the service-connected low back strain did not aggravate the radiculopathy. Id. The Veteran argues that living every day with a condition that caused obvious pain and limitations would have wider reaching effects that just the precipitating condition. The Board agrees that the December 2013 opinion, even when viewed in context of the cumulative evidence, does not currently establish that the radiculopathy was not aggravated, at least to some degree, by the service-connected back strain. However, restoration is not warranted at this point because the cumulative evidence strongly suggests this is so. There is simply an absence of evidence to confirm that the service-connected back strain caused any degree of aggravation. The representative's speculative opinion does not contradict the VA examiner's opinion. As such, this is not a situation where there is conflicting evidence that might lead reasonable minds to disagree. To the contrary, there is simply no supporting evidence to indicate whether there might have been aggravation. As such, the record is incomplete. Should service connection remained denied for degenerative disc disease of the lumbar spine, a new VA examination will be warranted. 7. An initial rating in excess of 10 percent for right lower extremity radiculopathy 8. An initial rating in excess of 10 percent for left lower extremity radiculopathy. 9. An effective date prior June 15, 2012 for the award of a separate 10 percent rating for radiculopathy of the left lower extremity 10. An effective date prior June 15, 2012 for the award of a separate 10 percent rating for radiculopathy of the right lower extremity A retroactive increase or additional benefit will not be awarded after basic entitlement has been terminated, such as by severance of service connection. 38 C.F.R. § 3.400(o)(1). Accordingly here, if service connection for radiculopathy remains severed, the claims for increased ratings and an earlier effective date for the grant of service connection for radiculopathy cannot be granted as a matter of law. As such, the issues are intertwined and must be remanded together. 11. An increased disability rating in excess of 10 percent for osteoarthritic narrowing of the medial left knee joint space. 12. An increased disability rating in excess of 10 percent for back strain. While the record contains contemporaneous VA examinations regarding the Veteran's disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016), or Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Veteran was previously scheduled for an examination in August 2018, but he was unwilling to answer any questions asked by the examiner. He informed the examiner "It's all in the computer, didn't you read anything?" The Veteran then declined a physical examination because he said it would cause him too much pain. In short, the Veteran was unwilling to cooperate with the examination. Since that time, the Veteran's representative in September 2020 apologized for the Veteran's lack of cooperation and asserted that full cooperative compliance with the new examination would be at the forefront. The representative asserted that there was an ever-worsening of the condition. Generally, an attorney's argument in a brief that there was a material change in disability is insufficient to trigger VA's duty to obtain another examination. Payne v. Wilkie, 31 Vet. App. 373, 390-91 (2019). Here, however, in light of the deficiency in the past VA examinations as it pertains to Correia and Sharp, coupled with the Veteran's assurance of future cooperation with the examinations(s), the Board finds that remand is warranted at this time. 13. A TDIU. It is not clear if the Veteran wishes to pursue a TDIU issue. First, he has not filed a TDIU application form, which captures the information necessary to decide a TDIU. Second, there is some evidence in the file indicating that he continues to work. For example, his representative in May 2014 noted that the Veteran reported to a March 2011 VA examiner that he was presently working in construction as a home builder. The representative asserted that his employment was at best marginal. He would occasionally pick up a job, but they were few and far between, and only of short duration. The representative asserted that the Veteran had done this "full time" only in the sense that he did not do anything else. He had now left this field and could only take short, part-time jobs allow for freedom to sit and stand at will. More recently, at an August 2018 VA examination, the Veteran answered that it had been "a while" since he last worked. Yet, in September 2018, one month later, the Veteran was seen for treatment of acute back pain after cutting some landscape matting earlier in September 2018. In November 2019, he reported to VA that he had limited income ($700/month) with a variable schedule as he did occasional handyman jobs. In November 2019, he reported "multiple" handyman jobs. In December 2019, he reported that he had been keeping busy with work projects in winter doing plowing jobs. In January 2020, he again reported being busy with plowing jobs. In April 2020, he reported keeping busying with working on yards and vehicles. This is some evidence that the Veteran was working at a time he made representations that he was not working. The Board is mindful of the representative's assertions that his employment was marginal. Nonetheless, it bears on the veracity of his statements that he could not work due to the service-connected conditions if he was working to some degree. That work, even if done on a part-time basis, might be consistent with a substantially gainful work or work-like environment. "Substantially gainful employment" is considered "work that involves doing significant productive physical or mental duties and is done for pay or profit" even if the work "is done on a part-time basis or if a claimant is paid less, or is given less responsibility than when the same claimant worked before." In other words a "substantially gainful occupation" is "one that provides annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income" prior to when he was last employed. See Faust v. West, 13 Vet. App. 342, 356 (2000) (citing analogous SSA regulations) (addressing a situation where "the exact nature of the veteran's day-to-day work activities is unclear; however, it is not disputed that he runs his own business managing pension investments," where he is "responsible for hiring employees and meet[ing] individually at least four times per year with each of his '20 investment clients.'") (internal citations omitted). Here, further information is needed as to the Veteran's work activities and income during the years he claims he was unemployed. The Board is mindful the Veteran was found totally disabled by the Social Security Administration (SSA). However, the laws and regulations concerning SSA disability are different from those governing TDIU. Moreover, it is not clear to what extent SSA was aware of his work activities since being granted SSA disability. The matters are REMANDED for the following action: 1. Contact the appropriate service department and/or records custodian(s), to include the National Personnel Records Center, with a request for copies of mental health records, including the mental health evaluation conducted in or around June 1992. 2. Send the Veteran a letter advising him of the information and evidence needed to award a TDIU. The letter should also request that he complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in order to provide the information needed to substantiate the claim of TDIU. He should be advised that he must report all income from any sources, including self-employment or marginal work, during any years he is claiming TDIU. 3. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed psychiatric disorder. The examiner is asked to address each of the following: (a.) Does the Veteran have a current condition diagnosis? The examiner must provide a diagnosis for any conditions found extant. In doing so, the examiner must conduct all necessary diagnostic testing, unless it can be explained why such testing is not medically necessary. (b.) If the Veteran does not currently have a psychiatric diagnosis, when did the prior diagnosis resolve? For each diagnosis, the examiner must address the following: (c.) Whether the diagnosis is at least as likely as not related to an in-service injury, event, or disease, including the mental health evaluation conducted in or around June 1992. (d.) Whether the current condition is at least as likely as not (1) proximately due to a different medical condition, or (2) has been aggravated beyond its natural progression by a different medical condition. If so, the examiner is asked to identify the primary medical condition. In answering these questions, the examiner is asked to consider the statements from the Veteran regarding his history of symptoms. The examiner is asked to explain why his statements make it more or less likely that a psychiatric condition started during service or is secondary to a service-connected disability. If indicated, it should be explained whether there is a **medical** reason to believe that the Veteran's recollection of his symptoms during and after service may be inaccurate or not medically supported as the onset or cause of his current diagnosis. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 4. Schedule the Veteran for an examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the nature and etiology of the claimed DDD of the lumbar spine. The examiner is asked to address whether the diagnosis of degenerative disc disease of the lumbar spine is at least as likely as not related to an in-service injury, event, or disease. In answering this question, the examiner is asked to discuss the medical significance of the treatment from July 1993 through September 1994 for complaints of current and past low back pain with a diagnosis of subluxation of L1 with a lumbar neuralgia complicated by hyperlordosis of the lumbar spine. The examiner should discuss whether this condition represented an early, presenting manifestation of degenerative disc disease. The examiner should not rely on silence in the medical records unless it can be explained: (a) why the silence in the available records can be taken as proof that the symptom(s) did not occur, including why the fact would have normally been recorded if present, or (b) why the absence of medical records is medically significant. 5. If service connection is not granted for degenerative disc disease of the lumbar spine, obtain an opinion by an appropriate clinician to determine the nature and etiology of the claimed radiculopathy. The examiner is asked to address whether the diagnosis of radiculopathy is (1) proximately due to a different medical condition, or (2) has been aggravated beyond its natural progression by the service-connected back strain. How certain are you in your answers? Are your conclusions "clear and unmistakable" such that no provider with the same information could reasonably be able to reach a different conclusion? 6. Schedule the Veteran for a VA examination to assess the severity of the service-connected back strain and left knee disabilities. (a.) This should include testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. (b.) If there are flare-ups, but if the examination is not conducted during a flare-up, the functional impact of a flare-up in terms of degrees of range of motion should be estimated. (c.) The examiner should provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia and Sharp, for the time period from June 2010 to present. The examiner should estimate the amount in degrees of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran. The examiner should also estimate the amount in degrees of range of motion lost due to flare-ups and repeated use over time experienced by the Veteran. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Bosely, 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.