Citation Nr: 21011748 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-41 778 DATE: March 2, 2021 ISSUES 1. Entitlement to an effective date earlier than February 11, 2014 for the grant of a 20 percent disability rating for service-connected right hip limitation of flexion. 2. Entitlement to an effective date earlier than February 11, 2014 for the grant of a 10 percent disability rating for service-connected right hip limitation of internal and external rotation. 3. Entitlement to service connection for major depressive disorder, to include as due to service-connected disabilities. 4. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU). ORDER Entitlement to an effective date earlier than February 11, 2014 for the grant of a 20 percent disability rating for service-connected right hip limitation of flexion is denied. Entitlement to an effective date earlier than February 11, 2014 for the grant of a 10 percent disability rating for service-connected right hip limitation of internal and external rotation is denied. REMANDED Entitlement to service connection for major depressive disorder, to include as due to service-connected disabilities is remanded. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. . In a December 20, 2013 rating decision, entitlement to service connection for right hip limitation of flexion and right hip limitation of internal and external rotation each were granted, each with noncompensable disability ratings effective from November 15, 2011, the day that the Veteran separated from service. The Veteran did not file a notice of disagreement with the ratings or effective dates assigned to these disabilities. 2. On February 11, 2014, the RO received a claim for increased ratings for the Veteran’s service-connected right hip limitation of flexion, and service-connected right hip limitation of internal and external rotation. 3. It is not factually ascertainable that the Veteran’s service-connected right hip limitation of flexion evinced the requisite symptomatology for a 20 percent rating within the year preceding the February 11, 2014 claim for an increased rating. 4. It is not factually ascertainable that the Veteran’s service-connected right hip limitation of internal and external rotation evinced the requisite symptomatology for a 10 percent rating within the year preceding the February 11, 2014 claim for an increased rating. CONCLUSIONS OF LAW 1. An effective date earlier than February 11, 2014, for the grant of a 20 percent rating for service-connected right hip limitation of flexion is not warranted. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. 2. An effective date earlier than February 11, 2014, for the grant of a 10 percent rating for service-connected right hip limitation of internal and external rotation is not warranted. 38 U.S.C. §§ 5110, 5107; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 2010 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2014 and March 2017 rating decisions, issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran filed a claim for entitlement to an increased disability rating for his service-connected right hip disabilities in February 2014. In May 2014, the RO increased the Veteran’s disability rating for his right hip limitation of flexion to 20 percent, and his right hip limitation of internal and external rotation to 10 percent. The Veteran filed a timely Notice of Disagreement in June 2014, appealing the disability ratings for his service-connected right hip, in addition to the effective date for the award of benefits. He was issued a statement of the case (SOC), and in December 2014, the Veteran filed a VA Form 9, appealing his claims to the Board. In the Form 9, the Veteran requested a videoconference hearing. Subsequently, in March 2017, the Veteran filed a claim for entitlement to service connection for major depressive disorder (MDD), claiming it was “secondary to my service-connected left shoulder and right hip.” The Veteran’s claim was then denied in a rating decision from March 2017, and the Veteran filed a NOD in August 2017. He was issued an SOC, and in March 2018 he filed a VA Form 9, appealing his claim to the Board. In this Form 9, he also requested a video conference hearing. As each of the claims were certified to the Board and awaiting a hearing, the Veteran’s claims were merged. Following that merger, the Veteran appeared before the undersigned Veterans Law Judge in a Travel Board hearing in July 2019 to present testimony on the issues on appeal. A transcript of the hearing has been associated with the Veteran’s claims file. The Veteran’s claims were then before the Board in November 2019. In that Decision is was first noted that a claim of entitlement to total disability rating based on individual unemployability (TDIU) had been raised as part and parcel of the underlying increased ratings claim for the Veteran’s service-connected right hip disability. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447. The Board then remanded each issue for additional development and adjudication. One of the reasons for the Remand in November 2019 was for the RO to contact the Veteran to confirm that he wished to withdraw his claim for entitlement to an increased disability rating for his right hip disabilities. The Veteran submitted correspondence in December 2019 confirming that he wished to withdraw the claim for increase, specifically saying that “to clarify, I do not wish [to] pursue an increase in my claim for flexion or rotation right/left hips.” The statement was signed and contained the Veteran’s current address. As a result, following the additional development and adjudication, the Veteran’s claim for entitlement to an initial compensable disability rating prior to March 11, 2019, and in excess of 30 percent thereafter, for service-connected right hip strain is no longer on appeal, and that issue has not been recertified to the Board. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Thus, the current remaining issues on appeal are those as mentioned on the title page, which have since returned to the Board. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). 1. Entitlement to an effective date earlier than February 11, 2014 for the grants of a 20 percent disability rating for the service-connected right hip limitation of flexion, and a 10 percent disability rating for the service-connected right hip limitation of internal and external rotation. The Veteran has claimed that he is entitled to an effective date earlier than February 11, 2014 for the 20 percent grant for his right hip limitation of flexion, and the 10 percent grant for his right hip limitation of internal and external rotation. See June 2014 Notice of Disagreement (NOD). Generally, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If it is factually ascertainable that the disability increased within one year preceding the date of claim for the increased rating, the effective date of increased compensation will be the date the disability increased within that year. 38 C.F.R. § 3.400 (o)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. §§ 3.1(p); 3.155. Any communication indicating an intent to apply for a benefit under the laws administered by VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file which may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). In Roper v. Nicholson, 20 Vet. App. 173 (2006), the Court held that effective dates for both primary and secondary conditions are governed by 38 C.F.R. § 3.400, which provides that the effective date is the later of the date the condition arose or the date a veteran applied for benefits. By way of background, the Veteran filed an application for entitlement to service connection for right hip limitation of flexion and right hip limitation of internal and external rotation on March 9, 2012. In a rating decision from December 20, 2013, the Veteran was granted entitlement to service connection for right hip limitation of flexion and right hip limitation of internal and external rotation each with noncompensable disability ratings. The effective date for the award of both disabilities was November 15, 2011, the day that the Veteran separated from service. The Veteran did not file a notice of disagreement with the ratings or effective dates assigned to these disabilities. The Veteran then filed a claim for “increase for right hip” that was received by VA on February 11, 2014. The Veteran was given a VA-contracted examination in April 2014. A May 2014 rating decision then increased the Veteran’s disability rating for his right hip limitation of flexion to 20 percent, and his right hip limitation of internal and external rotation to 10 percent. The effective date was February 11, 2014, the date that VA received the Veteran’s claim for an increased rating. As indicated above, the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred; otherwise, the effective date will be the date of VA receipt of the claim for increase, or date entitlement arose, whichever is later. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. The VA-contracted examination in April 2014 is the first evidence whereby it is factually ascertainable that the Veteran’s right hip limitation of flexion and limitation of internal and external rotation had increased in severity. Therefore, this is the date that entitlement arose. The Veteran’s claim for an increase was received on February 11, 2014. Although the Veteran is currently in receipt of an effective date for his grant of a 20 and 10 percent disability ratings for each disability from February 11, 2014, which is not the later of the claim for increase or the date entitlement arose, the Board will not disturb the earlier effective date. The preponderance of the evidence is against the claims. Thus, entitlement to an effective date earlier than February 11, 2014 for the grant of a 20 percent disability rating for the service-connected right hip limitation of flexion, and the grant of a 10 percent disability rating for the service-connected right hip limitation of internal and external rotation must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law, and not the evidence, is dispositive, the claim should be denied, or the appeal terminated because of the absence of legal merit or the lack of entitlement under the law). 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Board finds that additional evidentiary development is required before the claims on appeal are adjudicated. 2. Entitlement to service connection for major depressive disorder, to include as due to service-connected disabilities is remanded. The Veteran has claimed that his major depressive disorder (MDD) is due to his service-connected disabilities. Specifically, in his NOD the Veteran wrote that his “right hip condition has caused me many problems emotionally.” The Veteran testified in July 2019 before the undersigned Veterans Law Judge. The Veteran testified that his hip issues make “it difficult for [him] to deal with people. I’m very irritable, a very short temper. It’s taken my activities away. I can’t just go out for a walk and do anything.” He further testified that he has taken medication for depression. To establish an entitlement to service connection, the Veteran must establish (1) the existence of a present disability, (2) an in-service occurrence or aggravation of a disease or injury, and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. 38 C.F.R. § § 3.303(a). Service connection may also be granted as secondary to a currently service-connected disability. To meet the criteria for secondary service connection, a Veteran must prove that there is (1) a current disability that is not already service-connected; and (2) at least one service-connected disability; and (3) evidence that the non-service connected disability is either proximately due to or the result of a service-connected disability, or aggravated (increased in severity) beyond its natural progress by a service connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). As noted above, the Veteran’s claim was previously before the Board in November 2019. In that Decision it was first confirmed that the Veteran had met the first two criteria for entitlement to service connection on a secondary basis, since he has a current disability of major depressive disorder, and that he has at least one service-connected disability. 38 C.F.R. § 3.310. The Veteran’s claim however was remanded, since the Board found that there were multiple competing nexus opinions, which needed clarification. As a reminder, chronologically, a December 2016 negative opinion indicated that his right hip strain effected his mood, but not to the extent that the Veteran claims. An April 2017 positive nexus opinion directly contradicted the December 2016 opinion, stating that you could differentiate the symptoms of the Veteran’s MDD, yet this opinion was provided exclusively from a history provided by the Veteran. A June 2017 negative nexus opinion then stated that the diagnosis of depression could not be separated from alcohol abuse disorder. Finally, a July 2019 opinion provided a positive nexus opinion, but only after stating that the depression diagnosis essentially overlapped with the alcohol abuse disorder diagnosis. As a result, the Board lacked a clear and consistent etiological opinion, and the Veteran’s claim was remanded for a VA psychological opinion to determine the etiology of the Veteran’s MDD. 38 U.S.C. § 5103A (d); see further, McLendon v. Nicholson, 20 Vet. App. 79 (2006) That examination occurred in January 2020. The Veteran was seen in person, and his claims file was reviewed. The examiner at the time only noted a diagnosis of alcohol use disorder, severe. The examiner did not indicate that the Veteran had a current diagnosis of MDD and denied that the Veteran had more than one psychiatric disorder. Following clinical testing, the examiner wrote that the Veteran’s diagnosis was less likely than not due to his active duty service, and the following rationale was provided: Veteran’s current diagnosis meets DSM criteria, but there is no evidence that it is related to the Veteran’s military service or related to his service-connected disabilities. His current condition is less likely as not … incurred in or caused by an in-service injury, event, illness or condition. There is no report of mental health issues during the Veteran’s service time. Therefore, there is no nexus between military service and current symptoms. Veteran does not have a current diagnosis of a major depressive disorder that meets the DSM-5 criteria. The examiner then wrote that the Veteran’s diagnosis is less likely than not due to his service-connected disabilities. The following rationale was provided: Veteran has a current mental health disorder alcohol use disorder, as described in the report that meets DSM criteria. The disorder began subsequent to the service-connected diagnosis of any service-connected condition. BUT IS NOT related to that condition either as a means of coping with the condition or as a psychological reaction to the condition. Rather, the current disorder is a separate entity entirely from any identified service-connected condition and unrelated to it. Therefore, there is no nexus between the service-connected condition and the current mental health disorder. Thus, a negative nexus was provided for both theories of direct and secondary service connection. Importantly, when VA undertakes to provide a Veteran with an examination, that examination must be adequate for VA purposes. Barr v. Nicholson, 21 Vet. App. 303 (2007). In consideration of the above, the Board finds that the January 2020 examination and etiological opinion provided are inadequate. To begin, the January 2020 examiner denied that the Veteran had a current diagnosis of MDD, instead writing that the Veteran’s diagnosis was alcohol use disorder exclusively. The Board has already confirmed this through multiple VA examiners previously, in addition to the Veteran’s VAMC records. Second, the opinion provided does not reference any of the past examinations or opinions. Third, the opinion provided does not discuss potential aggravation of the Veteran’s diagnosis by his service-connected disabilities. And finally, the opinion on secondary service connection does not mention any one of the Veteran’s service-connected disabilities specifically, instead providing a broad etiological opinion that supposedly encompasses each disability. As a result, the Board finds that the VA examination from January 2020 is inadequate. Because the Veteran's entire history is reviewed when making disability evaluations, the record must be complete for such service connection determinations to be made. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Therefore, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim for an entitlement to service connection so that he is afforded every possible consideration. 38 U.S.C. § 5103 (A); 38 C.F.R. § 3.159. The Veteran must be given another VA psychological evaluation, whereby his diagnosis can be confirmed, and etiological opinions can be rendered based on his theories of entitlement to service connection. 3. Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) is remanded. The Veteran has generally claimed that his service-connected disabilities have kept him from maintaining gainful employment. See November 2019 Hearing Testimony. While the Board recognizes that the Veteran’s claim for entitlement to an increased disability rating for his service-connected right hip disability has been withdrawn, the Veteran’s claim for entitlement to TDIU has not been withdrawn and is still on appeal. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with their education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). The Veteran is currently service-connected for right hip limited flexion with osteoarthritis at 30 percent disabling; left shoulder strain, and right hip limited internal and external rotation both at 20 percent disabling; left hip bursitis with limitation of rotation and abduction, and left hip bursitis with limitation of flexion both at 10 percent disabling; and right first toe degenerative joint disease, right hip strain with avascular necrosis and left hip bursitis with hip strain, each at noncompensable ratings. The Veteran’s combined disability rating is 70 percent form March 11, 2019. Thus, the Board recognizes that the Veteran does not meet the threshold requirements for entitlement to TDIU. While he does have a combined disability rating of 70 percent, he does not have a single disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). Having said that, the Board also notes that the Veteran has claimed that his MDD is due to his active duty service and/or his musculoskeletal disabilities, and that claim is being remanded herein. Therefore, the Veteran may be able to meet the threshold requirements for entitlement to TDIU as a result of the his claim for entitlement to service connection for MDD. As noted above however, the service connection claim is being remanded herein. Therefore, the claim for a TDIU must also be remanded pending the development and readjudication of the service-connection appeal. See Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following action: 1. Obtain all outstanding VA and/or private treatment records. For any private treatment records, obtain the appropriate signed releases from the Veteran, and associate any additional records with the claim. Should such records exist, associate them with the electronic claims file. 2. Schedule the Veteran for an evaluation by a VA psychiatrist who has not previously examined the Veteran (or telehealth interview(s), review(s) of the record, etc., if an in-person examination(s) is not feasible) to determine the nature and etiology of any diagnosed major depressive disorder. The psychiatrist should review the Veteran’s claims file, including a copy of this remand, as well as the available etiological opinions of record. All indicated tests must be performed, and all findings reported in detail. The VA psychiatrist is then asked to address the following: (a.) Confirm whether or not the Veteran has a current diagnosis of major depressive disorder, and/or any other psychiatric disorder? (b.) For any/all acquired psychiatric disorder(s) diagnosed, is that diagnosis at least as likely as not related to an in-service injury, event, or disease in service? (c.) If not, for any/all acquired psychiatric disorder(s) diagnosed, opine as to whether it is at least as likely as not (50 percent or greater) that the Veteran’s diagnosis is causally related to, or aggravated by, his service-connected disabilities. Again, any opinion should include a complete rationale. The examiner is reminded that potential aggravation should be discussed. The examiner is reminded that the Veteran’s has been previously diagnosed with major depressive disorder, which he claims is due to his service-connected musculoskeletal disabilities. The examiner is asked to specifically address the previous examiner reports and etiological opinions of record, namely from the December 2016 VA evaluation, the April 2017 VA evaluation, the June 2017 VA evaluation, and the July 2019 private evaluation. All opinions provided must be thoroughly explained, and a complete and detailed rationale for any conclusions reached should be provided (a bare conclusory statement will be deemed inadequate). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. Thereafter, readjudicate the issues on appeal as noted above, to include the claim of entitlement to TDIU. If the determination remains unfavorable to the Veteran, he should be furnished a supplemental statement of the case (SSOC). The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.