Citation Nr: 21006848 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 16-07 820 DATE: February 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from September 29, 2014, is granted. Entitlement to an initial evaluation in excess of 70 percent for depression from January 25, 2017, is denied. REMANDED Entitlement to service connection for headaches is remanded. Entitlement to an initial disability evaluation in excess of 20 percent for lumbar strain is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for left ankle tenosynovitis is remanded. Entitlement to an initial disability evaluation in excess of 10 percent for left knee patellar femoral syndrome is remanded. Entitlement to TDIU prior to September 29, 2014, is remanded. FINDINGS OF FACT 1. Beginning September 29, 2014, the Veteran meets the schedular criteria to be entitled to TDIU and his service-connected depression has prevented him from securing and following substantially gainful employment. 2. Since January 25, 2017, the Veteran’s depression has been manifested by suicidal ideations with depression, chronic sleep impairment, and problems with memory and concentration; but without, suicide attempts or homicidal ideation, impairment of thought processes or communication, delusions, hallucinations, or grossly inappropriate behavior. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU from September 29, 2014, have been met. 38 U.S.C. § 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). 2. The criteria for an evaluation in excess of 70 percent for depression from January 25, 2017, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9435 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1986 to February 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded in December 2018 for further development; it has been re-assigned to the undersigned Veterans Law Judge. In December 2018, the Board remanded the requests to reopen issues of service connection for right knee, right ankle, and left heel disabilities for issuance of a statement of the case (SOC) pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued an SOC in February 2019. Because there was no substantive appeal on any of those issues, they are not before the Board Following the Board’s remand, the RO granted service connection for insomnia as secondary to the Veteran’s service-connected depression in an April 2020 rating decision and rated it together with depression. The award of service connection for insomnia is considered a full grant of the benefit sought on appeal and therefore that issue is no longer before the Board. The RO also granted a 70 percent evaluation for depression, effective January 25, 2017. Because a higher rating is available and the Veteran is presumed to seek the maximum available benefit, this issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Entitlement to a TDIU from September 29, 2014, is granted. TDIU may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In order to meet the schedular criteria for entitlement, the veteran must have either: (i) one disability rated at 60 percent or more; or (ii) two or more disabilities, with at least one disability rated at 40 percent or more and sufficient additional disability bringing the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Since September 29, 2014, the Veteran has met the schedular criteria for TDIU. The Board notes that there is still some question as to whether the Veteran stopped working in 2013 or 2014. However, it is clear that at the time he met the schedular criteria for TDIU, he was unemployed. There are a number of opinions in the claim file regarding the Veteran’s unemployability. During January 2015 VA treatment, his VA psychiatrist noted that the Veteran has been unable to obtain any form of competitive employment for about one year and that his inability to participate is a direct result of his service-connected psychiatric condition. That same psychiatrist reiterated in May 2016 that the Veteran suffers from severely functionally impairing chronic depression symptoms that are highly susceptible to stress and, in his clinical view, stress related to any work situation would have the potential to worsen his symptoms substantially. In October 2016, a psychiatrist opined that the Veteran’s symptoms were severe enough to prevent sustainable employment. In a November 2016 residual functional capacity evaluation, a separate physician also determined that the Veteran was not able to maintain substantially gainful employment. In an April 2017 private opinion, a certified vocational evaluator opined that the Veteran is totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected depression, back, knee, and ankle disabilities, and tinnitus. During April 2017 VA treatment, he and his VA treating psychiatrist discussed how work could negatively affect his depression. His psychiatrist expressed concern that his mood could be triggered by stress and how he remains very vulnerable to depression long term. Returning to work could substantially increase his risk of relapsing. Based on the foregoing, the evidence reflects that the Veteran’s service-connected depression prevents him from securing and maintaining substantially gainful occupation, and TDIU is warranted from September 29, 2014, the date the Veteran met the schedular criteria for TDIU. (The Board is remanding the issue of entitlement to TDIU prior to September 29, 2014, below.) 2. Entitlement to an initial evaluation in excess of 70 percent from January 25, 2017, for depression is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7. In evaluating a disability’s severity, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period, a practice known as staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). As mentioned above, a staged rating has already been assigned. Ratings are assigned according to the manifestation of symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Id. at 19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant.  38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran has been rated under DC 9435 for depression, which is evaluated under the General Rating Formula for Mental Disorders. Under that DC, the criteria for a 70 percent rating are 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 criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.  38 C.F.R. § 4.130, DC 9435. The Board has reviewed the Veteran’s treatment records from January 25, 2017, and finds that there is no indication that his service-connected depression resulted in total occupational and social impairment. In fact, the evidence shows that the Veteran got married, moved to Texas with his wife, and that he was doing a “bit better” than before. See VA treatment in March 2017 (making satisfactory progress towards meeting treatment goals; moderate depressive disorder with no evidence of suicidality); May 2017 (hopeful and future-oriented; no suicidal thoughts or plans and no indication of recurrent depression; episodes of withdrawal after a fight with his fiancé but they were able to start communicating well again); August 2017 (cut back on alcohol and is able to enjoy some things, citing his mother as protective; able to concentrate and get things done); December 2017 (remains future oriented and hopeful; remained in contact with family and saw his sister for the first time in 30 years; good support from friends and family). VA treatment records from March and April 2018 note the Veteran’s compliance to medication; he denied any adverse effects and any new problems. His mood was stable, and he denied persistent symptoms of depression. He also denied any hopelessness or suicidal/homicidal ideation in a convincing manner. He denied any symptoms of mania or psychosis and was future-oriented. During the June 2019 VA mental disorders examination, the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideation. During the examination, the Veteran was both anxious and dysthymic. He was capable of managing his affairs. He did not pose any threat of danger or injury to self or others. The examiner determined that the Veteran’s depression caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. During January 2020 VA treatment, the Veteran reported wanting to improve his irritability and be kinder to his wife. He was able to travel back home for family events. He sleeps less than three hours a night, and sometimes does not sleep for three days. He was oriented times four, his appearance was appropriate, and his attitude was cooperative. His affect was appropriate, his thought process goal directed. There was no evidence or report of delusions or hallucinations, and the Veteran denied suicidality. Based on the foregoing, the Board finds that the preponderance of the evidence is against an evaluation above 70 percent. The medical evidence of record does not support the conclusion that the Veteran’s overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 100 percent disability evaluation based on total occupational and social impairment.  38 C.F.R. §§ 4.7, 4.130, DC 9435. That is, the competent evidence of record does not show that the Veteran experiences gross impairment in thought processes or communication, 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 Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor. The Board finds that the Veteran’s overall picture more nearly approximates that of a 70 percent disability rating, and his symptoms do not more nearly reflect the frequency, severity, and duration of symptoms associated with the 100 percent rating. An evaluation in excess of 70 percent is therefore not warranted. REASONS FOR REMAND 1. Entitlement to service connection for headaches is remanded. The July 2019 VA headaches examiner opined that the Veteran’s headaches clearly and unmistakably existed prior to service based on the Veteran’s reports of headaches beginning since high school. The examiner further opined that his headaches clearly and unmistakably were not aggravated by service since the medical records showed that they resolved during service, and once they began again, the Veteran claimed they were due to lack of sleep. The Board notes that the RO granted service connection for insomnia in an April 2020 rating decision. Based on the examiner’s opinion, the Board finds a medical opinion addressing secondary service connection is necessary. 2. Entitlement to an initial disability evaluation in excess of 20 percent for lumbar strain is remanded. 3. Entitlement to an initial disability evaluation in excess of 10 percent for left ankle tenosynovitis is remanded. 4. Entitlement to an initial disability evaluation in excess of 10 percent for left knee patellar femoral syndrome is remanded. As outlined in the December 2018 Board remand, VA joints examinations must include joint testing for active and passive motion in both weight-bearing and non-weight-bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, estimated ranges of motion should be provided during flare-ups, if feasible, even if the Veteran is not experiencing one during the examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the VA spine, knee, and ankle examinations of record do not fully comport with the requirements of Correia or Sharp. Thus, remand is necessary for new examinations. 5. Entitlement to TDIU prior to September 29, 2014, is remanded. While the Veteran worked full-time during part of this period, he did not work the entire time. Prior to September 29, 2014, he does not meet the schedular requirements to be entitled to TDIU. See 38 C.F.R. § 4.16(a). Thus, the Board will refer this issue to the Director, Compensation Service, for extraschedular consideration of TDIU. See 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from April 2020 to the present. 2. After the development in the first directive is completed, the AOJ should arrange for a VA medical opinion, with examination or telehealth interview of the Veteran only if deemed necessary by a medical professional, to determine the nature and likely cause of any headache disability. The examiner should review the claim file (including this remand) and note such review was conducted. Based on review of the record, the examiner should provide an opinion with detailed rationale that responds to the following: (a) Please identify, by diagnosis, all headache disabilities present during the appeal period (from September 2014). (b) For each headache disability diagnosed, is it at least as likely as not (50% or greater probability) that the disability was either caused or aggravated by the Veteran’s service-connected depression with insomnia? Please explain why. The opinion must address whether the disability increased in severity beyond its natural progression (i.e., was aggravated). If aggravation is found, please identify to the extent possible the baseline level of disability prior to the aggravation. The examiner’s attention is directed to the Veteran’s reports that his headaches are due to lack of sleep. 3. After the above development is completed, the AOJ should arrange for an orthopedic examination of the Veteran to assess the current severity of his service-connected back, left knee, and left ankle disabilities. The examiner must review the entire record in conjunction with the examination and note such review was conducted. Pathology, symptoms (frequency and severity), and any associated impairment of function should be described in detail. All indicated tests or studies should be completed. Range of motion measurements should be included for active and passive motion in both weight-bearing and non-weight-bearing circumstances, including for the opposite undamaged joint, if applicable. If pain is noted, the point in the range of motion at which pain starts should be clearly noted. If feasible, the examiner must assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss, using lay observations specifically elicited from the Veteran. If not feasible, the examiner must provide a detailed explanation and rationale for why such could not be accomplished. Specifically, if the medical professional cannot provide an opinion without resorting to mere speculation, he or she must provide a complete explanation for why an opinion cannot be rendered; a rationale based on the fact that the Veteran is not having a flare-up at the time of the examination will not be deemed adequate. 4. Thereafter, the AOJ should refer this case to the Director, Compensation Service, for extraschedular consideration of TDIU prior to September 29, 2014, pursuant to 38 C.F.R. § 4.16(b). 5. If upon completion of the above action the issues remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Matta, 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.