Citation Nr: 21009083 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 12-06 568 DATE: February 18, 2021 ORDER An initial rating in excess of 30 percent for somatic symptom and depressive disorder is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease is remanded. Entitlement to service connection for a cervical spine disorder is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s somatic symptom and depressive disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for somatic symptom and depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 5243-9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1968 to March 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in July 2013 and May 2018 by a Department of Veterans Affairs (VA) Regional Office (RO). While the Veteran requested a Board hearing in connection with his claim for service connection for a cervical spine disorder, he withdrew such request in April 2019. Furthermore, he has not requested such a hearing in connection with his initial rating claims. In April 2020, the Board remanded the Veteran’s claim for service connection for a cervical spine disorder and it now returns for further appellate consideration. The Board notes that, subsequent to the issuance of the April 2020 statement of the case addressing the Veteran’s initial rating claims, additional evidence consisting of VA treatment records and an unrelated VA opinion has been received. While the Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, the Board finds that, as such are irrelevant to such claims, or contain findings that are duplicative to those previously considered by the AOJ, there is no prejudice to the Veteran in the Board proceeding with a decision at the present time. 38 C.F.R. § 20.1305(c). Additionally, in January 2021, the Veteran, through his representative, submitted additional evidence for consideration in his appeal 38 U.S.C. § 7105(e)(1). 1. Entitlement to an initial rating in excess of 30 percent for somatic symptom and depressive disorder. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected somatic symptom and depressive disorder is rated as 30 percent disabling, effective October 3, 2007, the date of service connection pursuant to DC 5243-9434, which provides that such disability is secondary to his service-connected back disability and is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. In this regard, a 30 percent rating is warranted when there is 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 when there is 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 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where 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. Id. A 100 percent rating is warranted when there is 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. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9411. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126(a). The Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). Turning to the evidence of record, at a May 2008 VA examination, the Veteran reported that he had a good relationship with his parents and siblings. He also indicated that he a good relationship with his wife except for daily irritability that he attributed to his back problems. The Veteran did not have any current friends, but sometimes went to watch fights on tv in a bar, visited his parents when his back problems permitted, and worked full-time. He reported a depressed and irritable mood, decreased concentration and energy level, poor sleep, anhedonia, and feelings of guilt about poor social interactions due to irritability. Upon mental status examination, the examiner indicated that the Veteran’s speech was unremarkable; he was neatly groomed; and he had a constricted affect. She found that the Veteran’s major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. Here, the examiner noted that the Veteran experienced sleep impairment; and there was no evidence of obsessive/ritualistic behavior, panic attacks, homicidal/suicidal thoughts, or episodes of violence (fair impulse control). He further noted that the Veteran’s memory was normal; he was able to maintain personal hygiene; and his irritability and problems with activities of daily living were attributed to his low back pain. The Veteran underwent another VA examination in November 2011, at which time he reported that he had a good relationship with his parents, had a good marriage, and was functioning as a father to three young children. The Veteran indicated that he sometimes raised his voice when arguing with his wife as she did not understand his physical limitations (back pain). He also reported that he has worked full-time for the past 10 years as a draftsman, and received work performance evaluations of “exceeding expectations” except for his attendance, which he related to his back problems. The Veteran endorsed symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and concentration problems. The examiner found that his depressive disorder resulted in occupational and social impairment due to mild or transient symptoms. The Veteran underwent an additional VA examination in March 2018 at which time he reported that he was still married and had a normal relationship with his wife and children. He further indicated that he had a limited social life as he spent time with only his family; enjoyed fishing, but had not been in months (does not have time); and continued to work as an engineering technician. The examiner found that the Veteran’s somatic symptom and depressive disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In this regard, the examiner determined that the Veteran exhibited symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. Here, the examiner noted that the Veteran’s affect was mood congruent, and his speech and thought content were clear and linear. The examiner further noted that the Veteran experienced irritability, reduced energy, and increased appetite. He denied suicidal/homicidal ideations. The Veteran also underwent intermittent treatment throughout the period on appeal, the records of which reflect similar symptoms and functional impairment noted above. In this regard, a May 2008 VA treatment record reveals the Veteran’s report of a low frustration tolerance that was mainly related to his back pain. A June 2008 VA treatment record reflects his report of irritability. An August 2008 VA treatment record reflects the Veteran’s report of planning travel for the following year with his family, and the physician’s notation that the Veteran had a high level of anxiety. In November 2008, he reported depression related to his back pain. In July 2009, the Veteran indicated a decline in his mood related to back pain and experienced mood swings; but reported that he was very happy about his eight-week old daughter. A January 2010 VA treatment record reflects that the Veteran had a trip planned to Disney World and he was overall less depressed. A February 2012 VA treatment record reveals that the Veteran had a much improved mood with no complaints. In February 2013, he indicated that he had episodes of irritability when his back pain was bad, but denied feeling depressed. An October 2013 VA treatment record indicates that the Veteran reported the current state of his relationship with his wife was supportive with stress and irritability related to his back pain causing problems in their relationship. He further reported that social support included his mother, 1-2 close friends, and 10-15 regular acquaintances he could count on. In May 2015, the Veteran’s affect was slightly anxious and he indicated that his mood still had ups and downs with irritability. In October 2015, he reported continued anxiety. A March 2016 VA treatment record reflects the Veteran’s report of difficulty with focus and concentration. He further reported that his family was doing well. A September 2016 VA treatment record reveals that the Veteran was chronically anxious/dysthymic. VA treatment records dated throughout the period on appeal show that the Veteran consistently denied suicidal/homicidal ideations and hallucinations; his memory intact; he was clean/well dressed; and his judgment/insight was fair. Upon review of the foregoing lay and medical evidence, the Board finds that the symptomatology reported throughout the appeal period is largely contemplated in the criteria for a 30 percent rating under the General Rating Formula, including the Veteran’s most frequently reported and pervasive symptoms of depressed mood, anxiety, irritability, and chronic sleep impairment. The Board notes that disturbances of motivation and mood is an example of a symptom that may be indicative of occupational and social impairment resulting reduced reliability and productivity, which warrants a 50 percent rating under the General Rating Formula. However, the Board finds that the nature, frequency, severity, and duration of such symptomatology has not resulted in such level of occupational and social impairment. Specifically, as will be discussed further herein, he has maintained a successful career with the same employer for over 20 years as a draftsman where he exceeds expectations and has close relationships with family members, friends, and acquaintances. Further, with the exception of irritability and decreased concentration, there is no indication that his psychiatric symptomatology has impacted his occupational and social functioning. Moreover, even in consideration of the totality of the Veteran’s somatic symptom and depressive disorder symptomatology, the Board finds that such does not more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In regard to the Veteran’s occupational functioning, as mentioned previously, the record reflects that he maintained employment as a draftsman with the same employer for nearly 20 years, with no mention of poor work quality or performance. Here, there is no indication that the Veteran does not perform well while he is on the job, or cannot perform the tasks necessary of his employment. While the May 2008 VA examiner noted that decreased concentration, increased tardiness, and poor social interaction related to the Veteran’s occupational functioning, there is no indication that his work performance is affected by such symptomatology. Rather, as noted at the November 2011 VA examination, the Veteran reported that his performance evaluation reflects that he exceeds expectations. Moreover, in regard to his social functioning, the record reflects that he maintains close relationships with family members and friends. Specifically, the Veteran has reported that he had a good relationship with his parents, siblings, and spouse, and enjoys raising his children. Additionally, although limited, the Veteran experienced social interaction as he watches fights on tv in a bar, visits his parents, spends time with his wife and children, and enjoys fishing. Further, he has planned trips with his family and maintains an extensive social support system, to include his mother, 1-2 close friends, and 10-15 regular acquaintances. Finally, following an interview with the Veteran in which he reported the totality of his somatic symptom and depressive disorder symptoms and described his social and occupational history, a review of the record, and a mental status examination, the November 2011 and March 2018 VA examiners found that his acquired psychiatric disorder resulted in occupational and social impairment due to mild or transient symptoms, which is consistent with a 10 percent rating under the General Rating Formula, and occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, which is consistent with the currently assigned 30 percent rating under the General Rating Formula, respectively. While the May 2008 VA examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula, the Board finds that such conclusion is not supported by the totality of the evidence. Specifically, as discussed above, such demonstrates that the nature, severity, frequency, and duration of the Veteran’s psychiatric symptomatology results in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Accordingly, the Board finds that, for the entire appeal period, the Veteran’s somatic symptom and depressive disorder has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. Therefore, an initial rating in excess of 30 percent for somatic symptom and depressive disorder is not warranted. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran’s service-connected somatic symptom and depressive disorder; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Further, neither the Veteran, nor his representative, have raised any other issues, nor have any other issues been reasonably raised by the record in regard to the initial rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim for an initial rating in excess of 30 percent for somatic symptom and depressive disorder. As such, that doctrine is not applicable in the instant appeal, and his initial rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for right knee degenerative joint disease. 3. Entitlement to an initial rating in excess of 10 percent for left knee degenerative joint disease. During the course of the appeal, the Veteran was afforded a VA examination in March 2018 that addresses nature and severity of his bilateral knee disabilities, to include the resulting functional impairment. However, as such examination did not comply with all applicable legal authority, a remand is necessary in order to obtain an addendum opinion addressing the nature and severity of such disability during the appeal period. Specifically, at the March 2018 VA examination the Veteran reported flare-ups; however, the examiner stated that she could not provide data regarding the range of motion following repeated use over time or during flare-ups without resorting to mere speculation as findings were not sufficient to predict. However, she did not report that she considered all procurable data in making such determination, or attempt to provide an estimate derived from information procured from relevant sources, including the lay statements of the Veteran. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Therefore, a remand is necessary in order to obtain an addendum opinion addressing such deficiency. 4. Entitlement to service connection for a cervical spine disorder. The Veteran has been diagnosed with cervical strain and degenerative arthritis of the spine (see March 2018 VA examination report), and as noted in the April 2020 Board remand, he maintains that such is related to an in-service parachute fall, or, in the alternative, that his service-connected lumbar spine disorder caused weight gain, which in turn aggravated his cervical spine disorder. At such time, the Board found that no opinion had been obtained addressing secondary service connection. Consequently, the Board remanded the claim in order to obtain an addendum opinion addressing the etiology of the Veteran’s cervical spine disorder. Thereafter, in a September 2020 addendum, a VA examiner opined that it was less likely than not that the Veteran’s obesity was due to his lumbar spine disorder, and influenced, caused, or aggravated his cervical spine disorder. In support thereof, he reported that obesity did not cause or aggravate cervical spine disorders, which was accepted medical knowledge and practice and supported by standard texts such as Wheeless. The examiner further reported that there was no evidence of aggravation of the cervical spine disorder beyond the natural course, due to any cause, including the Veteran’s lumbar spine disorder. Here, he noted that obesity was multifactorial, including age, activity level, exercise, caloric intake and expenditure, attitudes toward exercise, lifestyle, family history, and basal metabolic rate. The examiner explained that the Veteran had been overweight to obese since at least 2007 (BMI in 2007 was 34.9) and, as obesity did not happen overnight, it was more likely than not that there had been a gradual increase in weight since service (as opposed to due to the Veteran’s lumbar spine disorder). He further noted that the Veteran’s self-reported job duties involved a certain amount of strenuous activity, and exercise programs were available through PT, OT, and private gyms that took physical limitations into consideration. However, in January 2021, the Veteran, through his representative, cited a medical treatise article, “Osteoarthritis, obesity and weight loss: evidence, hypotheses and horizons – a scoping review,” which indicates that the association between osteoarthritis and obesity was well established, obesity was widely acknowledged as a risk factor for both the incidence and progression of osteoarthritis, and obesity had a negative influence on outcomes. Consequently, the Board finds that a remand is necessary in order to obtain an addendum opinion that considers such medical treatise article. The matters are REMANDED for the following action: 1. Return the record to the March 2018 VA examiner so as to obtain a retrospective opinion regarding the findings referable to the Veteran’s bilateral knee disabilities rendered at such examination. The record, to include a complete copy of this remand, must be made available to the examiner. The examiner should review the March 2018 examination report, to include the Veteran’s endorsement of flare-ups in his knees, and indicate whether, and to what extent, the Veteran’s range of motion is additionally limited during flare-ups or repeated use over time, expressed, if possible, in terms of degrees, or explain why such details cannot be feasibly provided. In this regard, the examiner should provide the foregoing opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up or following repeated use over time. If s/he cannot provide the foregoing opinion without resorting to mere speculation, s/he must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. A rationale for any opinion offered should be provided. 2. Return the record, to include a copy of this remand, to the VA examiner who rendered the September 2020 addendum opinion addressing the etiology of the Veteran’s cervical spine disorder or, if he is not available, an appropriate substitute. Following a review of the record, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that (1) the Veteran’s service-connected lumbar spine disability caused him to become obese and, if so (2) whether such resulting obesity was a substantial factor in causing or aggravating his cervical spine disorder and (3) whether his cervical spine disorder would not have occurred or worsened but for the obesity caused by his service-connected lumbar spine disability. For any aggravation found, the clinician should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology by the aggravation. In offering such opinion, the examiner should consider and address the medical treatise article submitted by the Veteran, through his representative, in January 2021, entitled “Osteoarthritis, obesity and weight loss: evidence, hypotheses and horizons – a scoping review,” which indicates that the association between osteoarthritis and obesity was well established, obesity was widely acknowledged as a risk factor for both the incidence and progression of osteoarthritis, and obesity had a negative influence on outcomes. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Koria B. Stanton, 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.