Citation Nr: 21005331 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 19-38 034 DATE: February 1, 2021 ORDER Entitlement to an effective date for the grant of a 70 percent evaluation for service-connected depressive disorder prior to October 31, 2014, is denied. REMANDED Entitlement to service connection for sleep apnea, to include as secondary to service-connected depressive disorder, is remanded. Entitlement to service connection for a cervical spine condition is remanded. Entitlement to service connection for left upper extremity radiculopathy is remanded. Entitlement to service connection for right upper extremity radiculopathy is remanded. FINDING OF FACT A fully developed claim form requesting an increased evaluation for service-connected depressive disorder was received by VA on October 31, 2014. The evidence of record does not show an increase in severity of the Veteran’s service-connected depressive disorder within one year prior to the Veteran’s October 31, 2014, fully developed claim form. CONCLUSION OF LAW The criteria for an effective date for the grant of a 70 percent evaluation for service-connected depressive disorder prior to October 31, 2014, have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.400, 20.302; Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1991 to October 1999. This matter comes before the Board of Veterans’ Appeals (Board) from May 2015 and June 2016 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Effective Date Generally, the effective date of an award based on an original claim for compensation benefits, if received more than one year after the claimant’s discharge from service, shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400 (b)(2)(i). The effective date, “shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore.” 38 U.S.C. § 5110 (a). The effective date of an award of disability compensation based on new and material evidence (other than service department records) received after a final disallowance shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(1)(ii). For increases, the effective date will also be the date of receipt of claim or date entitlement arose, whichever is later, except it shall also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). Disability Ratings Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an effective date for the grant of a 70 percent evaluation for service-connected depressive disorder prior to October 31, 2014, The Veteran was granted service connection for depressive disorder in an October 2011 rating decision and assigned an initial evaluation of 30 percent effective May 14, 2010. The Veteran did not appeal this decision or submit any new evidence within one year. Accordingly, that decision is final. On October 31, 2014, VA received a fully developed claim form submitted by the Veteran requesting an increased rating for his service-connected depressive disorder (claimed as service-connected mood disorder). Subsequently, the RO issued a rating decision in May 2015 increasing the Veteran’s evaluation for depressive disorder to 70 percent, effective October 31, 2014, the date VA received the request for an increased evaluation. The Veteran’s depressive disorder is evaluated under Diagnostic Code 9434. In pertinent part, a 30 percent disability 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is assigned 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); inability to establish and maintain effective relationships. The Veteran’s VA treatment records show that the Veteran reported experiencing mood swings, difficulty focusing, and avoiding people in a November 22, 2013 general inquiry to his treatment team. On January 3, 2014, the Veteran’s treating psychiatrist noted that the Veteran was well dressed and well groomed, with a decreased rate and tone of speech, cooperative attitude, and slowed psychomotor status. The Veteran was noted to be unmotivated with a constricted affect and congruent mood. The Veteran’s thought processes were noted to be goal directed and logical, negative for suicidal or homicidal ideations, and negative for auditory or visual hallucinations, delusions, or paranoia. The Veteran was noted to have good judgement and insight and to be alert and oriented with cognition grossly intact. The Veteran reported to his treating psychiatrist that he had received informal counseling at work related to job performance and stated that his employer told him he was “neglecting his job.” The Veteran stated that he has trouble sitting still for long periods of time and gets up and walks away from his cubicle for 15-20 minutes about 4-5 times per day and spends his time at home just sitting in his apartment and watching TV. He reported that he has no interest in doing anything. Additionally, in a September 29, 2014, psychiatric treatment note the Veteran was noted to have severe depression, difficulty concentrating and completing tasks, and difficulty initiating sleep. The Veteran stated that he found no pleasure in activities and found work to be overwhelming. The Veteran denied suicidal ideation, anxiety, and anger issues or violent outbursts. In May 2015, the Veteran received a VA examination wherein he was noted to experience the following: depressed mood; anxiety; panic attacks more than once per week; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; impairment of short and long-term memory; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work an social relations; and “psychomotor retardation.” As noted above, the Veteran submitted his claim for an increased evaluation for his service-connected depressive disorder on October 31, 2014. For increases, the effective date will also be the date of receipt of claim or date entitlement arose, whichever is later, except it shall also be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). Upon review of the evidence, the Board finds that the Veteran’s VA treatment records show that within the one year prior to submitting his claim for an increased rating, the Veteran experienced symptoms most closely associated with the 30 percent evaluation criteria such as: 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). The evidence of record does not show that the Veteran experienced or reported symptoms indicative of a higher rating 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; and difficulty in establishing and maintaining effective work and social relationships as is required to receive a 50 percent or higher evaluation for the applicable period prior to the Veteran’s October 31, 2014, request for an increased rating. Having reviewed the evidence, the Board finds that there is no evidence of a pending claim or increased severity prior to October 31, 2014. Under this fact pattern, the Board can find no basis for an effective date earlier than October 31, 2014. Accordingly, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected depressive disorder, is remanded. The Veteran is seeking service connection for sleep apnea which he contends is etiologically related to his service-connected depressive disorder. VA treatment records indicated that the Veteran underwent a sleep study in June 2016 and was subsequently diagnosed with sleep apnea requiring the use of a CPAP machine for treatment. The Veteran submitted into the record a November 2016 private medical opinion which concluded that the Veteran’s sleep apnea is more likely than not “secondary to, related to and/or aggravated by service-connected depressive disorder (with medication treatment) with diminished sleep, weight gain and/or obesity, and decreased activity.” The examiner opined that the Veteran’s weight gain was the result of his service-connected depressive disorder and that the Veteran’s diagnosed sleep apnea was the result of the Veteran’s weight gain. The opinion states that the Veteran’s service-connected depressive disorder has associated sleep disturbance, decreased activity, weight gain, and obesity, but fails to provide any explanation or rationale for the conclusion. Instead, the opinion contains several generalized statements and articles regarding the relationship between sleep apnea, weight gain, and mental health. Accordingly, the Board finds this opinion to be inadequate for determining entitlement to service connection for sleep apnea. The Veteran received a VA examination regarding the claimed condition in May 2016. The examiner, however, stated that the Veteran did not have a present diagnosis of sleep apnea. As noted above, VA treatment records reveal that the Veteran does have a present diagnosis of sleep apnea. Accordingly, the Board finds this opinion to also be inadequate for determining entitlement to service connection for sleep apnea. As the record does not contain an adequate medical opinion regarding the nature and etiology of the Veteran’s claimed sleep apnea, the Board finds that remand is warranted to obtain a new VA examination. 2. Entitlement to service connection for a cervical spine condition is remanded. The Veteran is seeking service connection for a cervical spine condition. The Veteran received VA examinations regarding the nature and etiology of the claimed condition in July 2012 and April 2014. The July 2012 VA examiner diagnosed the Veteran with degenerative disc disease, spondylosis of the cervical spine, but noted that the Veteran stated the pain began one year prior to the examination. The examiner subsequently opined that the condition was less likely than not incurred in or caused by in-service injury because the symptoms began more than 10 years after military service. The Veteran, however, submitted a statement in support of his claim in December 2013, stating that the examiner was incorrect and that his claimed cervical spine condition increased in severity in the year prior. Accordingly, the Veteran received a new VA examination in April 2014. The April 2014 examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. By way of rationale, the April 2014 examiner reviewed the Veteran’s medical history and stated that there is “no objective evidence of an ongoing cervical condition from military service until 2012.” The examiner noted that in November 2013, the Veteran’s treating physician submitted a letter in support of the Veteran’s claimed neck condition, however the examiner failed to discuss the letter, instead stating that a previous letter dated December 2011 focused solely on a low back condition. Accordingly, the Board finds this examination to be inadequate for determining entitlement to service connection for the claimed cervical condition. The Board observes that in support of his claim, the Veteran submitted two letters from his treating physicians, one dated November 4, 2013 and a subsequent letter dated October 24, 2014. Both letters contain positive nexus opinions from both the Veteran’s treating VA physician and his private physician, and while both physicians indicate that they have reviewed the Veteran’s claims file, neither physician provides a rationale for their opinions. Accordingly, the Board finds that these opinions are also inadequate for determining entitlement to service connection for the claimed cervical condition. As the record does not contain an adequate medical opinion regarding the nature and etiology of the Veteran’s claimed cervical spine condition, the Board finds that remand is warranted to obtain a new VA examination. 3. Entitlement to service connection for left and right upper extremity radiculopathy is remanded. The Veteran is seeking service connection for both left and right upper extremity radiculopathy, which he contends is etiologically related to the cervical spine condition discussed above. The Board notes that functionality of the extremities is generally assessed as part of evaluations of the spine. Therefore, the Board remands the issue of entitlement to service connection for bilateral upper extremity radiculopathy as inextricably intertwined with the service connection claim involving the Veteran’s cervical spine condition. Consequently, these claims must be remanded for contemporaneous consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an examiner of sufficient expertise to determine whether the Veteran’s obstructive sleep apnea is related to obesity due to service and/or a service-connected disability. All pertinent evidence of record must be made available to and reviewed by the examiner(s) providing the opinion. The examiner should clarify whether obesity has caused or aggravated the obstructive sleep apnea. If either answer is yes, the examiner should state whether it is at least as likely as not (50 percent probability or more) that the obesity was caused or aggravated, at least in part, by any of the Veteran’s service-connected disabilities. The examiner is asked to support opinions with citations from the medical record, as possible. The examiner must provide a rationale for all opinions expressed, with consideration of the various medical opinions of record and the recent treatment records. The examiner must specifically address the probable cause of the Veteran’s weight gain. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 2. Afford the Veteran a VA examination with an examiner of appropriate expertise to address the nature and etiology of the Veteran’s claimed cervical spine condition(s) and bilateral upper extremity radiculopathy. Following a review of the relevant records and lay statements, the examiner should opine as to whether it is at least as likely as not (a 50 percent probability or greater) that: (a) any diagnosed cervical spine disability originated during the Veteran’s period of active service or is otherwise etiologically related to active service; and (b) upper and lower extremity radiculopathy is due to or aggravated by his cervical condition. The examiner must provide a complete rationale for any proffered opinion. In so doing, the examiner must consider and discuss the Veteran’s competent lay statements, and assume such statements are credible for purposes of the opinions. Specifically, the examiner should discuss the Veteran’s reports of in-service motor vehicle accidents, falls, and participation in studies related to ship and jet testing. The examiner must also discuss and consider the November 2013 and October 2014 letters from the Veteran’s treating physicians. (continued on next page) If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.