Citation Nr: 21077130 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 17-08 439 DATE: December 28, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as unspecified depressive disorder, to include as secondary to service-connected TBI, is granted. Entitlement to an initial rating of 30 percent, but no higher, for a left clavicle disability is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran's unspecified depressive disorder is proximately due to his service-connected TBI. 2. The Veteran's left clavicle disability symptoms have been more nearly approximated by flexion limited to 25 degrees from the side. 3. The Veteran is unbale to obtain or retain substantially gainful employment due to his service-connected TBI. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for unspecified depressive disorder, to include as secondary to service-connected TBI, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to an initial rating of 30 percent, but no higher, for a left clavicle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a Diagnostic Code 5201. 3. The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1980 to November 1981. He appeals an October 2016 rating decision granting entitlement to service connection for a left clavicle fracture with a noncompensable evaluation and a January 2019 rating decision denying entitlement to service connection for major depressive disorder. In November 2020, the Veteran testified before the undersigned Veteran's Law Judge. A transcript is of record. During the pendency of the appeal, the Veteran was granted an increased initial rating of 20 percent for his left clavicle disability. As this does not represent a full grant of benefits sought on appeal, the issue of entitlement to an initial rating greater than 20 percent is still on appeal. The Board observes that the physical and psychiatric symptoms of TBI are rated separately prior to assigning a rating for the TBI itself. For instance, in this case the Veteran should receive separate ratings for his residual migraines, vertigo, and such, under the appropriate diagnostic codes for those disabilities. Per the Order above, the Veteran will be assigned a separate rating for his service-connected unspecified depressive disorder. Then a final rating should be assigned for any remaining symptoms attributable solely to the Veteran's TBI. Accordingly, some adjustment is expected to the Veteran's individual ratings. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303(a), 3.304, 3.307, 3.309, 3.310. Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2017). 1. Entitlement to service connection for an acquired psychiatric disorder. The Veteran contends that his unspecified depressive disorder is attributable to his service-connected TBI. After a review of the evidence, the Board finds that service connection is warranted. A review of the Veteran's service treatment records show that he was involved in a motor vehicle accident in January 1981. He sustained multiple physical injuries, including a traumatic brain injury. He was diagnosed with unspecified depressive disorder in August 2017. The Veteran contends that his depression symptoms began after his in-service motorcycle accident. However, no treatment for any psychiatric symptoms is noted in his service-treatment records. At separation, the Veteran listed a multitude of symptoms which he attributed to his motorcycle accident. He denied ever having depression at the time. As to post-service symptoms, a review of the medical evidence shows that the Veteran continually denied experiencing depression prior to his august 2017 diagnosis. Based on the foregoing, a continuity of symptoms since active service has not been established. As to nexus, the Veteran was afforded a VA examination in August 2017 to assess the severity of his service-connected TBI. On that occasion, the VA examiner opined that the Veteran's diagnosed mental health condition of Unspecified Depressive Disorder is associated to his concerns with cognitive functioning and symptoms related to his TBI. He finds tasks to be overwhelming and highly learned tasks have become more challenging for him which impacts mood. He described fatigue and lack of motivation and effort. He has difficulty managing stress and is easily agitated as well. In August 2018, a different VA examiner opined that it was less likely than not that the Veteran's depressive disorder was proximately due to his service-connected TBI. The examiner reasoned that record review brings into question the veracity of the Veteran's complaints and he has personality traits that indicate he exaggerates physical and mental symptoms. After resolving all doubt in favor of the Veteran, the Board finds the medical evidence to be in relative equipoise regarding a nexus between his unspecified depressive disorder and service-connected TBI. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The evidence tends to show that the impaired cognitive functioning the Veteran experiences because of his TBI has given rise to his unspecified depressive disorder. In summation, a nexus has been established between the Veteran's current unspecified depressive disorder and his service-connected TBI. Accordingly, service connection is warranted and the claim is granted. Increased Ratings Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation 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. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40); see also DeLuca v. Brown, 8 Vet. App. 202, 206-207 (1995). 2. Entitlement to an initial rating greater than 20 percent for a left clavicle disability. The Veteran seeks a higher disability rating for his left clavicle disability. After a review of the evidence, the Board finds that an initial rating of 30 percent, but no higher, is warranted. The Veteran's left clavicle (his non-dominant side) is currently rated at 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5201. The only higher rating under that DC is a 30 percent rating for limitation of motion of the non-dominant arm with flexion and/or abduction limited to 25 degrees. Higher ratings under DC's 5200 and 5202 are not available in this case as there is no evidence of ankylosis or impairment of the humerus at any time during the period on appeal. The Veteran was afforded a VA examination in September 2020 to evaluate the severity of his left clavicle disability. The examiner noted that the Veteran's left shoulder is severely limited due to long term changes affected by the original injury degenerating into osteoarthritis and tears in the RTC, SLAP, and Biceps. He cannot effectively lift his left arm above the shoulders except to eat and cannot lift any object overhead requiring use of the left arm. On this occasion, the Veteran showed 70 degrees of flexion/abduction during initial range of motion testing. Although the Veteran reported flare-ups, the examiner opined that a determination of any additional functional loss could not be made without resorting to mere speculation. The examiner reasoned that the Veteran could not reliably determine and demonstrate range of motion loss during a flare up or after repetitive usage. His medical records did not identify previous flare ups or after repetitive usage where there was a loss of range of motion. Furthermore, general medical knowledge of the Veteran's joint condition is insufficient to reasonably estimate range of motion for each plane of motion as there is great variability between Veteran's with similar conditions. The Board observes that before a VA examiner opines that he or she cannot offer an opinion as to additional functional loss during flare-ups without resorting to speculation based on the fact that the examination was not performed during a flare, the examiner must "elicit relevant information as to the veteran's flares or ask her to describe the additional functional loss, if any, she suffered during flares and then estimate the veteran's functional loss due to flares based on all the evidence of record, including the veteran's lay information, or explain why he or she could not do so." See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board finds the opinion rendered by the September 2020 VA examiner to be compliant with Sharp. The examiner attempted to elicit relevant information regarding the Veteran's flare-ups but was unable to do so. Further, the examiner explained that a limit on medical knowledge prevented any estimation past mere speculation regarding additional functional loss during flare-ups. In any event, the Board finds that the criteria for the highest schedular rating available, 30 percent, has been met. At his September 2020 VA examination, the Veteran reported that his flare-ups occurred about every 4 days. An episode lasted from 2 to 3 days with a reported pain level of 8/10. During a flare-up, the Veteran must keep his left arm close to his side and attempt to not move it at all. The Board observes that the Veteran is competent to describe his ongoing symptoms, such as painful motion, and his statements are credible in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vat. App. 465 (1994). Overall, a review of the medical and lay evidence of record indicates that the Veteran can barely flex his left arm outwardly, less than 25 degrees from his side, during a flare-up of his left clavicle disability. In summation, the Board finds that symptoms of the Veteran's left clavicle disability have resulted in limitation of motion that is more closely characterized by flexion limited to 25 degrees from the side. In this case, there are no indications of other manifestations of left clavicle symptoms that are not covered by the schedular criteria, nor does the Veteran allege any extra-schedular entitlement. Accordingly, an initial rating of 30 percent, the highest rating available under DC 5201, is warranted throughout the period on appeal. TDIU Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a) (2018). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed to Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58 (2019). 3. Entitlement to TDIU. The issue of entitlement to TDIU has been raised in this case and will be considered by the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009). The Veteran contends that he has been unable to work since 2016 due to his service-connected disabilities. He worked in the field of automotive maintenance after active service. The record does not show any postsecondary education nor any indication of other special skills or training. The Veteran has met the threshold for entitlement to TDIU on a schedular basis. Specifically, he is service-connected for the following disabilities: TBI with headaches at 60 percent; degenerative arthritis of the spine at 40 percent; Vertigo secondary to TBI at 30 percent; cervical spine degenerative disc disease at 30 percent; left clavicle fracture at 30 percent; left elbow and left ankle scars at 20 percent; right knee strain, tinnitus, left carpal tunnel syndrome, left ankle strain all rated at 10 percent; and noncompensable ratings for bilateral hearing loss and left elbow and ankle scars. Per the Order above, the Veteran is also service-connected for unspecified depressive disorder with an, as yet unassigned rating. Throughout the period on appeal, the evidence demonstrates that the cognitive, emotional/behavioral, and physical impairments resulting from the Veteran's service-connected TBI have had a detrimental effect on his ability to maintain employment. In particular, a vocational rehabilitation assessment from March 2018 determined that the Veteran had a serious employment handicap due to his lack of education in a suitable field and the number and seriousness of his service-connected disabilities. At his November 2020 hearing, the Veteran admitted that he has been unable to hold any job where special accommodations were not provided. His cognitive impairments degrade his ability to perform tasks and he becomes frustrated and depressed as a result. In this case, the evidence demonstrates that the Veteran's service-connected TBI, and associated symptoms, render him unable to maintain substantially gainful employment. Accordingly, a TDIU rating is warranted. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Daniel Ballinger, Associate Counsel