Citation Nr: 21077524 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 19-22 885 DATE: December 30, 2021 ORDER A higher 70 percent rating for depressive disorder is granted. Ratings higher than 10 percent for left and right ankle disabilities are denied. REMANDED Entitlement to service connection for a low back disability, including degenerative arthritis of the lumbosacral spine, is remanded. Entitlement to service connection for a left foot disability, including radiculopathy, is remanded. Entitlement to a rating higher than 10 percent for facial scars is remanded. Entitlement to a rating higher than 10 percent for facial lesions is remanded. Entitlement to a compensable rating for back scars is remanded. FINDINGS OF FACT 1. During the rating period on appeal, the Veteran's flattened affect, disturbances in mood and motivation, impairment of memory and concentration, unprovoked irritability, suicidal ideation, and difficulty in adapting to stressful circumstances (including in a work or worklike setting) have resulted in what amounts to occupational and social impairment with deficiencies in most areas, though not total occupational and social impairment. 2. During the rating period on appeal, his ankles have been painful with range of motion consequently limited, at worst, to 20 degrees of plantar flexion and dorsiflexion. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to a higher 70 percent rating, though no greater, for the depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. But the criteria conversely are not met for entitlement to ratings higher than 10 percent for the bilateral (left and right) ankle disability. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, DC 5299-5024. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U. S. Marine Corps from April 1981 to September 1981, from October 1981 to February 1982, from February 1982 to June 1982, from October 1982 to January 1983, from January 1983 to May 1983, and from March 1985 to December 1994. This appeal to the Board of Veterans' Appeals (Board) is from December 2015 and June 2019 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In a July 2020 decision since issued, the Board, in relevant part, denied the Veteran's claims for increased ratings for his depressive disorder, facial lesions, back scars, and bilateral cheek scars. That same July 2020 decision, instead, remanded his claims for service connection for a low back disability and a foot condition, as well as for an increased rating for his bilateral ankle condition, but granted a 20 percent rating as of August 19, 2015, for the detached retina of his right eye while conversely denying a rating higher than 30 percent for this disability since August 18, 2017. To the extent unfavorable, the Veteran appealed to the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC). In a July 2021 Memorandum Decision, the CAVC vacated the portion of the Board's decision denying these claims and remanded them back to the Board for further development and readjudication in compliance with directives specified. So, these claims, and those previously remanded, are again before this Board. 1. A higher 70 percent rating is granted for depressive disorder. The Veteran contends that he is entitled to a rating higher than 10 percent for his depressive disorder. In vacating the Board's prior denial of this claim, the Board has been directed to consider evidence in the Veteran's treatment records indicating he has flattened or dull affect and suicidal ideation. 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). According to the General Formula, 0 percent (noncompensable) rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. 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 VA mental status examination in June 2019. The examiner found that a mental condition existed but was not severe enough to interfere with the Veteran's occupational or social functioning or to require continuous medication. The Board, however, weighs this assessment against the other evidence of record contrarily tending to support more severe symptoms and meeting the criteria for a higher rating namely, a 70 percent rating. For example, in May 2019 correspondence, the Veteran endorsed significant feelings of survivor's guilt causing him to contemplate "why this existence is worth it all too frequently." The Board recognizes this as an endorsement of suicidal ideation, and in Bankhead the Court explained that mere ideation, alone, may be sufficient reason to assign a 70 percent rating, even without actual intent. The Veteran also has undergone sporadic treatment for his mental health, reporting difficulty "shutting off" his thoughts, frequently expressing feelings related to survivor's guilt. His treatment notes indicate he experiences recurrent, moderate depressive episodes, although they in turn cause deficiencies in most areasespecially his ability to work and interact with certain family members. Notably, his depressive episodes also have significant impact on his judgment, thinking, and mood, and this, too, is reason for assigning a higher 70 percent rating. See, e.g., Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). For example, during a June 2016 mental health appointment, he discussed the need to exercise self-control during bouts of anger and his difficulty doing so. In expounding, he discussed a fight he had had with his stepson during which he lost his temper. In May 2016, he reported increased irritability and taking a longer time to "cool down" after angry episodes. The mental healthcare provider also noted the Veteran had difficulty with forgetfulness, so memory. Previously, in August 2015, he had reported a lack of appetite and lack of energy/drive. In November 2015, he had reported poor concentration and anhedonia (difficulty feeling happy). In July 2016, the Veteran denied feelings of suicidal ideation, but also endorsed thoughts such as "is it worth it?" These feelings were reiterated in his 2019 written correspondence. The Board, therefore, considers this to be a form of suicidal ideation and notes that statements of this nature crop up multiple times within his treatment records. In September 2018, he reported experiencing irritability, helplessness, paranoia, and suspiciousness. In December 2018, he was observed by his mental healthcare provider to have a depressed mood, low energy, diminished interests, anxiety, and worry. An advocate letter (not a medical opinion) was submitted by Dr. B in February 2016. Dr. B explained that he had developed a close friendship with the Veteran and has personal knowledge of his history and symptomatology. Dr. B explained that the Veteran actively thinks of suicide when his stressors connected to his service overwhelm him, which has increased markedly in frequency as time goes by. Dr. B added that the Veteran is treated for anxious mood and depression, and that his symptoms include depressed mood, diminished interests, low energy, difficulty concentrating, social withdrawal, feelings of guilt and worthlessness, disrupted sleep, mistrust, and anxiety. These symptoms are also reflected in his treatment notes. The same opinion also mentions the Veteran's episodic depression and describes these episodes as "catastrophic." Dr. B defines catastrophic as active suicidal ideation that has "increased markedly in frequency as time has gone by." The Board also acknowledges other medical opinions submitted for the purposes of obtaining Social Security benefits that, although non-binding, are nonetheless probative in this instance as to the extent and severity of the Veteran's symptoms. While Social Security Administration (SSA) determinations are not binding on the Board, they are, however, relevant. See Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's VA claim); see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). For example, a mental impairment questionnaire from January 2018 indicates the Veteran's depressive disorder significantly reduces his functionality in that it produces marked difficulties in maintaining social functioning, concentration, persistence, and pace, with one or two episodes of decompensation occurring every year (the Board interprets these episodes as flare-ups). In the questionnaire, decompensation is defined as exacerbations or temporary increases in symptoms accompanied by a loss of adaptive functioning. In its March 2018 decision, the SSA found objective medical evidence indicating the Veteran's mental condition significantly reduced his functionality. The Board interprets these findings to indicate his symptoms cause occupational and social impairment with deficiencies in most areas. While the Board also acknowledges the Veteran's multiple positive family relationships and his support system, as well as his engagement with other Veterans both in online and in-person communities, it weighs these functional relationships and necessary support system against the preponderance of evidence, particularly his treatment records and written statements, indicating he nonetheless experiences occupational and social impairment with deficiencies in most areas. Further, 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. Specifically, his unlisted symptoms, including, for example, his loss of appetite and feelings of survivor guilt, are similar to "near-continuous panic or depression affecting the ability to function independently, appropriately and effectively," which is contemplated by the higher 70 percent rating being assigned, rather than the even greater 100 percent rating. The Board also finds the level of impairment caused by the Veteran's listed symptoms more closely approximates the level associated with a 70 percent rating rather than 100 percent rating. In short, during the period on appeal, his flattened affect, disturbances in mood and motivation, impairment of memory and concentration, unprovoked irritability, suicidal ideation, and difficulty in adapting to stressful circumstances (including in a work or worklike setting) have resulted in occupational and social impairment with deficiencies in most areas. Consequently, a higher 70 percent rating is warranted for the entire review period on appeal. 2. Ratings higher than 10 percent for the bilateral (left and right) ankle disability are denied. The Veteran contends that he is entitled to ratings higher than 10 percent for his bilateral ankle disability due to the increasing severity of the pain he experiences. The Veteran's left and right ankle disabilities (residuals of ankle strains/sprains) are each currently rated under hyphenated DC 5299-5024, for tenosynovitis. According to DC 5024, the disability is rated based on limitation of motion of the affected part or as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5024. Limitation of motion of the ankle is rated under 38 C.F.R. § 4.71a, DC 5271. According to DC 5271, a 10 percent rating is warranted for "moderate" limited motion of the ankle and a 20 percent rating for "marked" limited motion of the ankle. Effective February 7, 2021, VA amended the rating criteria for DC 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria and apply the version most favorable to the Veteran. However, the revised criteria only can be applied prospectively, as of their effective date. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character." See www.merriam-webster.com/dictionary/marked. 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 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."). According to 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. The Veteran was provided VA examinations in July 2021 and December 2015. In December 2015, he reported experiencing flare-ups causing recurrent pain and weaknessespecially in his left ankle. He further reported limited use of his ankles due to the pain that caused him to be unable to function at a normal level. But, on examination, his ankles were found to have full range of motion with no pain noted, so including none reducing motion. Normal strength was also noted. In February 2016, the Veteran reported in written correspondence that he had experienced a decrease in strength and stability in his ankles, with constant, severe pain and difficulty going up and down stairs, with high top footwear required to perform daily tasks. In February 2016, he was noted to have a normal gait during a primary care visit. In October 2019, he reported being unable to stand or walk for more than 15 minutes due to his ankle pain and that this pain interfered with his activities of daily living (ADLs). He reported that his ankles grew worse every year and remained tender and that he had experienced ankle pain for decades. The Veteran was provided an additional examination in July 2021, during which his range of motion was measured at 20 degrees plantar flexion and dorsiflexion, bilaterally, on both active and passive range of motion. With regards to functional loss, he reported pain, burning and weakness with difficulty walking on uneven ground and an inability to stand for extended periods of time. He did not report flare-ups. Objective evidence of localized tenderness was also noted. But also, notably, no additional functional loss was observed even after repetitive use. Although he reported increased pain after repetitive use, there was no further decrease in his range of motion. That finding is significant because, in Mitchell, the Court explained that, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011) (emphasis added). In Mitchell, the Court held that the evaluation of painful motion as limited motion only applies when limitation of motion is noncompensable (meaning 0-percecent disabling) under the applicable DC. The Court further explained that, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis (and, by extension, § 4.59 even when the disability does not involve arthritis according to Burton), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. Rather, the pain "must actually affect some aspect of 'the normal working movements of the body' such as 'excursion, strength, speed, coordination, and endurance' [under] 38 C.F.R. § 4.40 in order to constitute functional loss" warranting a higher rating. See id. at 43. Even in applying the rating criteria most favorable to the Veteran (so, in this case, the pre-February 7, 2021 rating criteria), the Board finds that the preponderance of the evidence is against ratings exceeding 10 percent for his left and right ankle disabilities. The Board acknowledges his lay reports of symptoms, most notably his chronic ankle pain, and that there was functional loss due to pain, instability, excess fatigability, repetitive use, pain during flare-ups, and overall weakness. However, even considering his lay reports of symptoms and functional loss, the degree of additional limitation reflected by the statements that he has trouble standing and walking for extended periods of time and this makes certain activities of daily living more difficult, this would not result in symptoms more nearly approximating marked limited motion (in other words, limitation of motion so distinctive or emphasized that it would approximate marked limited motion). The Board has considered whether any other DCs related to disabilities of the ankle would provide for higher disability ratings. However, the evidence does not reflect that the symptoms the Veteran has would warrant higher ratings under a different DC. See 38 C.F.R. § 4.71a. In conclusion, then, the Board finds that the preponderance of the evidence is against his appeal for ratings greater than 10 percent for his bilateral ankle disability. In denying any greater ratings, 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. REASONS FOR REMAND 1. Entitlement to service connection for a low back disability (to include degenerative arthritis of the lumbosacral spine) is remanded. The Veteran contends his low back disability is a result of wear and tear during his many years of service as a Marine and reports experiencing back pain during his service but being unwilling to seek treatment due to a fear of being ostracized. He was provided a VA examination in July 2021, during which the examiner specifically opined that the Veteran's low back disability is, indeed, due to wear and tear. However, the examiner then indicated that, because the Veteran's service treatment records (STRs) do not mention any back issues, it is less likely than not that his current back issue was related to his service. But an opinion, as here, based on the mere absence of treatment records without consideration of a Veteran's competent reports is inadequate. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). Therefore, on remand, the examiner must be specifically asked to consider the Veteran's multiple statements that he experienced back pain during his service but did not report to sick call owing to concerns that it would affect his career and the general perception that he would not be viewed as acting as a traditional Marine or befitting of the same. In addition, the Board sees that private treatment records from January 2015 submitted by the Veteran indicate that he has been experiencing chronic back pain for "years." Treatment records from January 2014 also indicate back pain for at least two years prior. Consequently, an addendum opinion is necessary to address the Veteran's lay statements concerning experiencing back pain during his service because of the strenuous physical training he had and the extreme physical demands required of him as a Marine. In addition, the examiner is also asked to address the private treatment notes mentioned indicating the Veteran had been experiencing chronic back pain prior to 2014. 2. Entitlement to service connection for a left foot disability (to include radiculopathy) is remanded. Because a decision on the claim of entitlement to service connection for a low back disability could significantly impact a decision on this derivative claim of entitlement to service connection for a left foot disability, these claims are "inextricably intertwined". Thus, a decision on this left foot claim must be deferred pending completion of the additional development being directed concerning the underlying claim for a low back disability. 3. Entitlement to a rating higher than 10 percent for facial scars is remanded. 4. Entitlement to a rating higher than 10 percent for facial lesions is remanded. 5. Entitlement to a compensable rating for back scars is remanded. The CAVC remanded these claims back to the Board due to inadequate VA examinations assessing the severity of these service-connected disabilities. The CAVC concluded the Veteran's most recent examinations did not provide sufficient detail regarding the severity of these disabilities. Specifically, the CAVC indicated that, "[i]n relying on these examination reports, the Board failed to adequately address numerous VA treatment records that indicate [the Veteran's] skin disability was worse than reflected on the examinations." For example, a May 2016 treatment record noted multiple cysts on his back and legs, a May 2018 treatment record noted multiple cysts on his face, ears, trunk, and back, and a December 2017 treatment record noted an infection related to a furuncle on his left shoulder that was treated with oral antibiotics. Thus, reexamination is needed reassessing the severity of these disabilities and reconciling the conflicting evidence concerning this. Accordingly, these claims are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's current low back disability is at least as likely as not related to the back pain he reportedly experienced during his service. In making this determination, the examiner must consider the Veteran's statements regarding his reluctance to seek medical treatment during service due to fear of ostracization and fear of impact on his military career. These are the reasons he says there is not documentation in his STRs. The examiner also must consider the treatment records from 2014 and 2015 indicating the Veteran had been experiencing back pain for several years prior. 2. Schedule the Veteran for an examination by an appropriate clinician to reassess the severity of his service-connected facial scars, facial lesions, and back scars. To this end, the examiner must provide a full description of the skin disorders and report all signs and symptoms necessary for evaluating these disabilities under the applicable rating criteria. The examiner is especially asked to consider the Veteran's treatment records from May 2016, May 2018, and December 2017, which indicate the use of oral antibiotics and the presence of multiple cysts on his face, ears, neck, legs, and trunk. KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. B. Kucera 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.