Citation Nr: 21014861 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 16-24 583 DATE: March 16, 2021 ORDER New and material evidence having been received, the application to reopen the claim for service connection for a lumbar spine disorder is granted; the appeal is granted to this extent only. Service connection for a left foot disorder is denied. A rating in excess of 10 percent for right foot fracture is denied. A rating in excess of 70 percent of generalized anxiety disorder (GAD) with major depressive disorder (MDD) is denied. REMANDED Entitlement to service connection for a lumbar spine disorder, claimed as secondary to service-connected right foot fracture, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. In a final rating decision issued in July 2010, the Agency of Original Jurisdiction (AOJ) denied service connection for lumbar spine disorder, characterized as a low back disorder. 2. Evidence added to the record since the final July 2010 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a lumbar spine disorder. 3. At no time during the pendency of the claim does the Veteran have a current disability of a left foot disorder, and the record does not contain a recent diagnosis of such disability prior to the Veteran’s filing of a claim. 4. For the entire appeal period, the Veteran’s right foot fracture does not more nearly approximate a moderately severe foot injury. 5. For the entire appeal period, the Veteran’s GAD with MDD is manifested by psychiatric symptomatology resulting in occupational and social impairment in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. The July 2010 rating decision that denied service connection for a lumbar spine disorder, characterized as a low back disorder, is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2021)]. 2. New and material evidence has been received to reopen the claim of entitlement to service connection for a lumbar spine disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for entitlement to service connection for a left foot disorder have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for a rating in excess of 10 percent for right foot fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5284. 5. The criteria for a rating in excess of 70 percent for GAD with MDD 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) 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2004 to June 2005. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in January 2013 and November 2013 by a Department of Veterans Affairs (VA) Regional Office. In November 2018, the Board remanded the appeal for additional development and it now returns for further appellate consideration. The issue of entitlement to an earlier effective date for the award of service connection for right foot fracture was also remanded in order for the AOJ to issue a statement of the case, as the Board noted that the Veteran had filed a timely notice of disagreement (NOD) to the November 2013 rating decision regarding such issue. However, the Board notes that service connection for right foot fracture was awarded in a July 2010 rating decision with an effective date of February 3, 2010, and a NOD was not received within one year of such rating decision. Thus, the Veteran did not file a timely NOD in regard to the issue of entitlement to an earlier effective date for the award of service connection for right foot fracture and he was also informed of such in a June 2019 letter sent by the AOJ. Thus, the Board does not have jurisdiction over such claim. Additionally, the Board notes that the issue of entitlement to service connection for a lumbar spine disorder was previously adjudicated in the final July 2010 rating decision. Thus, while such issue was remanded in November 2018, the Board has included the claim as to whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine disorder as it was not addressed previously. Furthermore, the Board notes that since the issuance of the April 2020 supplemental statement of the case, additional evidence has been associated with the Veteran’s claims file, including updated VA treatment records and a private mental disorders disability benefits questionnaire (DBQ). Accordingly, in December 2020, a letter was sent to the Veteran requesting whether he would waive AOJ consideration of such evidence; however, he did not respond. Nonetheless, upon further review, the Board notes that the Veteran’s representative waived AOJ consideration of the private mental disorders DBQ submitted in August 2020, and the updated VA treatment records are irrelevant and/or contain findings that are duplicative to those previously considered by the AOJ regarding the issues decided herein. Thus, the Board finds there is no prejudice to the Veteran in proceeding with a decision on his claims at the present time. 38 C.F.R. § 20.1305(c). 1. Whether new and material evidence has been received in order to reopen a claim of entitlement to service connection for a lumbar spine disorder. Generally, a claim which has been denied in an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). New evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary’s duty to assist by providing a medical opinion. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). By way of background, VA received the Veteran’s original claim for service connection for a back disorder in February 2010. In a July 2010 rating decision, the AOJ considered the Veteran’s service treatment records (STRs) and post-service treatment records. The AOJ found that such evidence did not indicate that the Veteran’s back disorder occurred in or was caused by his military service. Consequently, the AOJ found that service connection for a back disorder was not warranted. Later that same month, the Veteran was advised of the decision and his appellate rights, but he did not enter a NOD with such decision. Further, no new and material evidence referable to such claim was physically or constructively associated with the record within one year of the issuance of such decision and no relevant service department records have since been received. Therefore, the July 2010 rating decision is final. 38 U.S.C. § 7105(c) (West 2002) [(2012)]; 38 C.F.R. §§ 3.104, 3.156, 20.302, 20.1103 (2010) [(2021)]. The evidence received since the final July 2010 rating decision includes VA treatment records showing that the Veteran continued complaining of back pain and October 2012 and June 2019 VA examinations addressing the nature and etiology of the Veteran’s back disorder. The Veteran also offered an alternative theory of etiology as he claimed that his back disorder was secondary to his right foot disability. Consequently, the Board finds that the evidence added to the record since the final July 2010 denial is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claim of entitlement to service connection for a lumbar spine disorder. Accordingly, new and material evidence has been received and such claim is reopened. 2. Entitlement to service connection for a left foot disorder. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may not be granted without evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. Id.; see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff’d, 78 F.3d 604 (Fed. Cir. 1996). Pertinent to a claim for service connection, such a determination requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995); Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. The Veteran is seeking service connection for a left foot disorder. However, upon review of the evidence, the Board finds that, as he does not have a current disability of a left foot disorder at any time proximate to his claim, service connection for such disorder is not warranted. In this regard, the Veteran underwent a VA examination in May 2019. At such time, the examiner noted that there was no objective evidence to support a diagnosis of a left foot disorder. Thus, he concluded the Veteran did not have a left foot disorder. The Veteran also did not complain of any symptoms related to his left foot disorder. Furthermore, the Veteran’s post-service treatment records are negative for a disability associated with his left foot disorder, or any complaints of related symptomatology. Therefore, based upon the foregoing evidence, the Board finds that, at no time during the pendency of the claim did the Veteran have a current disability of a left foot disorder, and the record does not contain a recent diagnosis of disability prior to the filing of a claim. See McClain, supra; Romanowsky, supra. In this regard, the May 2019 VA examiner found that the Veteran did not have a current diagnosis related to his claimed disorder and the Veteran did not report he had current problems with such disorder at the VA examination. Moreover, the medical and lay evidence of record fails to reveal that the Veteran has any current symptoms or functional impairment associated with his claimed left foot disorder. See Saunders, supra. Consequently, as there is no current disability, service connection for such disorder is not warranted. See Brammer, supra. Increased Ratings 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. Further, neither the Veteran nor his representative have raised any other issues, other than the claim for a TDIU, which will be addressed below, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 3. Entitlement to a rating in excess of 10 percent for right foot fracture. The appeal period before the Board begins on April 18, 2013, the date VA received the Veteran’s claim for an increased rating for his right foot disability, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability has been assigned a 10 percent rating pursuant to DC 5284, which pertains to foot injuries. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. Pursuant to Diagnostic Code 5284, the Veteran’s current 10 percent rating is for a moderate foot injury, and the next higher rating of 20 percent is assigned where there is a moderately severe foot injury. A maximum rating of 30 percent is assigned where there is a severe foot injury. Further, a Note following the Diagnostic Code indicates that when the foot injury is accompanied by actual loss of use of the foot, a 40 percent rating should be assigned. 38 C.F.R. § 4.71a. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Further, 38 C.F.R. § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable or malaligned joints or periarticular regions, regardless of whether the Diagnostic Code under which the disability is evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). As an initial matter, the Board notes that for the entire appeal period, the Veteran underwent a single VA examination in May 2019. In this regard, VA examinations were scheduled in October 2013 and January 2016 to determine the nature and severity of his right foot disability. However, the Veteran failed to report to both VA examinations. In this regard, VA regulations provide that, when a claimant fails to report for an examination scheduled in conjunction with original claims, the claims shall be rated based on the evidence of record. 38 C.F.R. § 3.655. As such, the Board will decide the claim based on the evidence of record. In this regard, the Veteran’s VA treatment records document his reports of right foot pain. During his May 2019 VA examination, the Veteran also reported subjective pain about the mid foot. He also stated that his foot ached if he stood or walked on it for a long time; after about 3 hours. He also reported flare-ups and described them as being too painful to walk on it after a few hours and that he had tried different insoles, but they did not work well. The examiner noted diagnoses of right flat foot, right metatarsalgia, and fracture of right foot second and third metatarsals. With regard to the Veteran’s right flat foot, the examiner noted that he had pain that was accentuated on use. The Veteran also reported that he tried arch supports but he remained symptomatic. However, the examiner noted that the Veteran’s right flat foot did not cause pain on manipulation, swelling on use, characteristic calluses, and there was no objective evidence of marked deformity (pronation, abduction, ect.). With regard to the Veteran’s metatarsalgia, the examiner noted that such was mild and occurred only after prolonged use of 3 hours of standing or walking. Regarding the Veteran’s foot injury, the examiner noted that his metatarsal fractures of the second and third toes had precipitated a compromise of his arch (pes planus) and had led to metatarsalgia (pain about the metatarsal bones in his foot, which were broken). The examiner indicated that the severity of the Veteran’s right foot injury was mild and that such was chronically compromised weight bearing and that it was beneficial for the Veteran to wear properly fitted arch supports. There was no pain on physical exam as it was not evident upon manipulation, palpation, weight bearing, or with simple walking. However, the Veteran reported it ached with prolonged use and that the pain was relieved if he could take a break and sit down. Moreover, the examiner noted that the Veteran’s pes planus and metatarsalgia were additional conditions which are directly due to or related to the service-connected toe fractures of the second and third metatarsals, which affected the mechanics of the arch of the foot. The Veteran’s mild pes planus was also acquired, not congenital. The examiner further noted that due to the sequelae of the Veteran’s right foot disability, he would be unable to work at an occupation which involved much walking or standing. In this regard, the examiner noted that the Veteran’s foot would become very painful after 10 minutes of walking or standing on the job but that such pain may not be a factor as much with a sedentary job, where he was not weight bearing on the right foot for prolonged periods of time. Based on the foregoing, the Board finds that the evidence does not show that the Veteran’s right foot disability more nearly approximate a moderately severe foot injury, thereby warranting the assignment of the next higher rating of 20 percent. In this regard, the Board finds that, while such disability results in flat foot and metatarsalgia, the Veteran’s functional impairment, which affects, but does not preclude, his ability to walk and stand, results primarily from his subjective complaints of pain. Furthermore, the May 2019 VA examiner considered the totality of the Veteran’s subjective complaints, objective findings, and resulting impairment, and found that such disability resulted in no more than a mild foot injury. Therefore, the Board finds that, as the Veteran’s right foot disability does not more nearly approximate a moderately severe foot injury, a rating in excess of 10 percent is not warranted. In reaching such determination, the Board acknowledges the Veteran’s subjective symptoms and resulting functional impairment, but finds that such do not provide a basis for awarding a rating in excess of 10 percent, especially in light of the fact that that the VA examiner, who is a medical professional with the expertise necessary to assess the overall severity of his right foot disability in light of the rating criteria, found that such disability resulted in no more than a mild foot injury. See Mitchell, supra (pain must affect some aspect of normal movement in order to constitute functional loss under 38 C.F.R. § 4.40). Furthermore, such symptomatology and resulting functional impairment are contemplated in the currently assigned 10 percent rating. 38 C.F.R. § 4.59 (painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint). The Board has also considered whether a higher or separate rating is warranted under any other potentially applicable Diagnostic Code. In this regard, while the Veteran has a diagnosis of right flat foot and metatarsals that has been associated with his service-connected right foot disability, his subjective pain is contemplated by the currently assigned 10 percent rating under DC 5284. Additionally, a higher rating is not warranted under DC 5276, pertinent to the evaluation of flatfoot, as the Veteran’s right flat foot is not severe, and there was no objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, or characteristic callosities, to warrant a 20 percent rating. A higher rating is also not warranted under DC 5279, which pertains to the evaluation of metatarsalgia, as a 10 percent rating is the maximum rating available. Furthermore, as weak foot, claw foot, hallux valgus, hallux rigidus, hammer toes, and malunion of the tarsal or metatarsal bones are not shown, ratings under DCs 5277, 5278, 5280, 5281, 5282 and 5283 are not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected right foot disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In reaching the foregoing determinations, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for right foot fracture, the benefit of the doubt doctrine is inapplicable in such regard. Therefore, his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to a rating in excess of 70 percent of GAD with MDD. The Veteran’s service-connected GAD with MDD is evaluated pursuant to DC 9400, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. In this regard, a 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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. As the United States Court of Appeals for the Federal Circuit explained, 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. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (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 117-18; 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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the General Rating Formula “indicates that the presence of suicidal ideation alone…may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (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). In the instant case, the Veteran is in receipt of 70 percent for his service-connected GAD with MDD for the entire appeal period stemming from his February 2, 2012 claim; thus, in order to obtain a higher rating, the evidence must show that his GAD with MDD symptomatology results in total occupational and social impairment. However, as will be discussed below, the Board finds that such disability does not result in total occupational and social impairment, and thus, a rating in excess of 70 percent for such disability is not warranted. In this regard, in a March 2012 VA treatment record, the Veteran reported that he had been struggling and trying to get a job for 3 years, and that most of his friends were dead or in prison. The Veteran also stated that he did not see the point in going on anymore, but stated that he would not hurt himself. In May 2012, he reported some support from his mom and that he just got hired with quality control and that he was also interviewing for a federal job. He also stated that he had been able to interview well and relate well with people. In June 2012, the Veteran obtained a temporary contract job with Lockheed; however, the following month he reported having increased stress dealing with people at his job in quality control and with Lockheed. He also reported that his brother was staying with him. Later that same month, he stated that he was unemployed but was doing a work study with VA and was going to start school full-time in the fall. In October 2012, the Veteran was afforded a VA examination. At such time, he reported his suicidal ideation was triggered by economical stressors or being out of work, and that he had it about one to two times per month. He also stated that when his friend wrecked his car in July, he felt very distressed about the prospect of life and wanted to kill himself. However, when he got a call from VA to do a work study his suicidal ideation subsided. The Veteran also denied having any intimate relationships and stated that his past relationships had never lasted long. The examiner found he had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. His symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran also stated that he had poor impulse control, experienced consistent avolition, was not motivated when he arrived home, and was more likely to have suicidal ideation when he felt overwhelmed and distressed by life situations. The examiner further noted that the Veteran appeared to function adequately and efficiently until certain stressful circumstances caused him major distress. In November 2012, the Veteran expressed uncertainty about taking a new job within the treasury department as he worried about his erratic job history and ability to maintain employment. He also stated that he was having problems in school as he had low motivation and mood. He also expressed recent transient suicidal ideation and worried it would get worse if his job did not work out. However, the Veteran stated he was currently with friends and the clinician noted that there was no current imminent risk and no current suicidal ideation. In February 2013, the Veteran requested input on a letter to prior employer (nuclear power) asking on information on why he was denied further employment. The Veteran stated that he was verbally told it was due to his mental condition. Nonetheless, in May 2013, the Veteran reported that he started a new job as an inspector but that he was having some issues as in the past with his employer wanting him to work faster whereas he felt he needed to be more thorough based on his past straining. In August 2013, he reported that he lost his job in helicopter part repair company because of unsatisfactory progress. He also stated that he tried hard but did not know what their expectation was and that he did not get along with his supervisor. He further reported that losing his job hurt him, but he coped well and was working with his friend in a tile install company and was planning to start school. In September 2014, a vocational opinion was received from S.B, a vocational consultant. She found that the Veteran was totally and permanently precluded from performing work at a substantial gainful level due to the severity of his service-connected GAD with MDD, right foot fracture, and xerostomia, and that the record supported this finding as far back as the date of filing. She based such finding on studies showing how employers view absenteeism from work as the Veteran would be expected to miss more days than acceptable. Thereafter, in December 2014, the Veteran sought treatment for his drug addiction and psychiatric disability. Later that same month, the Veteran participated in an outing to a bowling alley and he was appropriate and cooperative. He interacted with his peers and staff and demonstrated a reasonable level of comfort during the community outing. However, from January 2015 to March 2017, the Veteran was incarcerated for the sell and distribution of illegal drugs. A January 2015 letter was also received from the Veteran, in which he noted that he was very depressed about being back in jail and that he had been having panic attacks. He also noted that he had daily thoughts about killing himself every day. Thus, a therapist was sent to the Veteran to check on his mental health/medication concerns and safety. In March 2016, the Veteran met with a social worker and stated that he planned on returning to the Dallas area after his incarceration as he had both family and friends there, and that he was interested in going back to substance abuse treatment. After his release from prison in March 2017, the Veteran reported that he was living with his mom and they were getting along fine. He also stated that he was currently unemployed but was hoping to find a job. In June 2018, the Veteran reported that he did not complete his enrollment in compensated work therapy because he wanted a steady job and not a temporary job. In February 2019, the Veteran reported he relapsed last year in December after losing his job as he had nothing to do. However, in August 2019, the Veteran reported that he started working full-time and that his boss was cooperative. Additionally, in September 2019, the Veteran stated that he worked for a mobile mechanic service and many of their jobs were on a call out basis and that his duties involved getting his boss to his jobs and helping from there. Pursuant to the November 2018 remand, the Veteran underwent another VA examination in May 2019. At such time, the examiner noted that the Veteran had diagnoses of GAD, methamphetamine use disorder, recent remission, and opioid use disorder, recent remission. The examiner determined that it was not possible to differentiate what symptoms were attributable to each diagnosis as the Veteran had been using drugs for 10 years and it was very common that the brain pathways were altered, and as a result, many people developed mood disorders. The examiner also noted that those with mood disorders used drugs to self-medicate and that even if the drug use was discontinued, many of the symptoms cannot be differentiate. The examiner found that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The Veteran reported that he currently owned his own home and his mom lived with him. He did not have a relationship with his dad but got along with his mom, sister, and maternal side brother. He also had a surrogate father, who has been close to him since his high school years. The Veteran also reported that he almost completed his associate degree and that he last worked in the technical field on aircrafts and power plants in 2013. His symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. In August 2020, a private mental disorders DBQ was received from Dr. E.S. She noted that the Veteran had the same diagnoses as the May 2019 VA examiner and that it was not possible to differentiate what symptoms were attributable to each diagnosis. She noted that the Veteran’s symptoms included depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. In this regard, she noted that the Veteran reported that he sometimes had to have people remind him to take a shower and shave, and that he had to pay someone to keep up with his property or it would not get done. He also stated that he had a lot of anxiety leaving the house. However, upon mental status evaluation, the Dr. E.S. noted that the Veteran was appropriately dressed and groomed; had normal speech; appeared mildly anxious with a full range of effect; his thought process was logical and linear; and his attention, concentration, memory, insight, and judgment were adequate. With regard to his social and interpersonal functioning, the Veteran reported that he has some friends since high school but that he did not hang out much if other people he did not know were around. He also stated that he could not trust people and that he had never been in a long-term relationship. Dr. E.S. also opined that the Veteran’s GAD with a history of methamphetamine opioid use disorders more likely than not prevents the Veteran from maintaining substantially gainful employment since the date of his February 2012 claim due to impairments in social relations, motivation, energy, and chronic suicidal ideation, which caused him significant issues in his prior employment and led to his termination. Based on the foregoing, the Board finds that, for the entire appeal period, the Veteran’s GAD with MDD has not resulted in total occupational and social impairment; thus, a rating in excess of 70 percent for such disability is not warranted. Specifically, throughout the appeal period, while the Veteran has reported social isolation and avoidance of people, he has been able to maintain long-term relationships with his family, including his mom and siblings, and a surrogate father, who he has been close with since high school. Additionally, the Veteran has reported that he has had friends throughout the appeal period as he reported that a friend wrecked his car at the October 2012 VA examination and that he was working with his friend at tile install company in August 2013. In March 2016, the Veteran also stated that he planned on returning to the Dallas area after his incarceration as he had family and friends there. Furthermore, while Dr. E.S. noted that the Veteran had total social and occupational impairment in August 2020, the Veteran reported that he had some friends since high school even though he did not hang out much if people were around that he did not know. Additionally, while the Veteran’s psychiatric symptomatology may affect his occupational impairment, the Veteran has had several jobs since his February 2012 claim and has applied for vocational rehabilitation services throughout the appeal period. Consequently, while the Veteran’s occupational and social relations have been limited, such are not entirely absent. Moreover, neither the October 2012 nor the May 2019 VA examiner found that the Veteran’s GAD with MDD symptoms were of a nature, frequency, duration, and severity as to result in total occupational and social impairment. These examinations were conducted by examiners with the appropriate expertise in evaluating psychiatric disabilities, and they provided a detailed description of the impact the Veteran’s GAD with MDD has on his occupational and social functioning. Consequently, based on the foregoing, the Board finds that, for the entire appeal period, the Veteran’s GAD with MDD is manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. Therefore, a rating in excess of 70 percent for GAD with MDD is not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected GAD with MDD; however, the Board finds that the Veteran’s symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings is not warranted. In sum, the Board finds that the preponderance of the evidence is against a rating in excess of 70 percent for the Veteran’s GAD with MDD. Therefore, the benefit of the doubt doctrine is not applicable to the instant claim and the Veteran’s claim for a higher rating must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 5. Entitlement to service connection for a lumbar spine disorder, claimed as secondary to service-connected right foot fracture. Pursuant to the November 2018 remand, the Veteran underwent a VA examination in May 2019. At such time, the examiner noted a diagnosis of lumbosacral strain. He opined that such disorder was less likely than not proximately due to or the result of the Veteran’s service-connected right foot disability. However, his rationale was in relation to direct service connection as he noted that the right foot fracture healed before the back pain began and that such pain did not occur in service but rather began several years after service. The examiner also did not provide an opinion regarding aggravation as requested in the prior remand; instead, he noted that back pain did not start until years after service/after fracture healed. Thus, the Board finds that a remand is warranted to obtain an addendum opinion that addresses such concerns. 6. Entitlement to a TDIU. In February 2020, the Veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940) reporting that he last worked full-time on May 3, 2013, for Safran Turbo Meca in quality control. However, as discussed previously, the record indicates that the Veteran has worked several jobs since May 2013. Additionally, in an October 2020 VA treatment record, the Veteran reported that he continued to be busy working for himself. Thus, the Board finds that a remand is necessary for the Veteran to complete another VA Form 21-8940 in order for him to report his complete work history since February 2012, including part-time work, and his income from such work. The matters are REMANDED for the following actions: 1. Contact the Veteran and request that he complete and return a VA Form 21-8940, listing his complete employment history, to include part-time and seasonal employment, and income, since February 2012. 2. Return the record, to include a copy of this Remand, to the VA examiner who conducted the Veteran’s May 2019 back examination. If unavailable, the record should be provided to an appropriate medical professional so as to render the requested opinion. The need for an additional examination of the Veteran is left to the discretion of the clinician selected to write the addendum opinion. After a full review of the record, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s currently diagnosed lumbosacral strain is caused or aggravated by his service-connected right foot disability. Why or why not? For any aggravation found, please state, to the best of your ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.