Citation Nr: 21014975 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-59 791 DATE: March 16, 2021 ORDER Entitlement to revision of the November 2012 rating decision that did not grant service connection for post-traumatic stress disorder (PTSD), on the basis of clear and unmistakable error (CUE) is denied. Entitlement to revision of a November 2012 rating decision that assigned an initial disability rating of 10 percent for depressive disorder, not otherwise specified (NOS), on the basis of clear and unmistakable error (CUE) is denied. Entitlement to a rating of 50 percent effective May 12, 2017 for service-connected persistent depressive disorder is granted subject to the laws and regulations controlling the award of monetary benefits. Entitlement to service connection for cervical spine disability is denied. Entitlement to service connection for lumbar spine disability is denied. Entitlement to service connection for left lower extremity (LLE) radiculopathy, to include as secondary to nonservice-connected lumbar spine disability is denied. Entitlement to service connection for right lower extremity (RLE) radiculopathy, to include as secondary to nonservice-connected thoracic spine disability is denied. Entitlement to service connection for left upper extremity (LUE) radiculopathy, to include as secondary to nonservice-connected cervical spine disability is denied. Entitlement to service connection for right upper extremity (RUE) radiculopathy, to include as secondary to nonservice-connected cervical spine disability is denied. Entitlement to service connection for a left ankle disability is denied. FINDINGS OF FACT 1. A November 2012 rating decision granted service connection for depressive disorder with an evaluation of 10 percent. 2. The Veteran did not file a timely appeal ,or submit new and material evidence within one year of the November 2012 rating decision which granted service connection for depressive disorder and assigned a 10 percent evaluation; therefore, the November 2012 rating decision is final. 3. The correct facts, as known at the time of the November 2012 rating decision, were before the VA adjudicators, and the statutory and regulatory provisions extant at the time were correctly applied. 4. For the entire period on appeal, the Veteran’s persistent depressive disorder symptoms have more closely approximated the criteria for 50 percent disabling. 5. Any contention of significant and/or chronic complaints since service of radiculopathy, the back, the neck, and/or the left ankle are less than credible. 6. The Veteran’s cervical condition was not incurred in, or aggravated by, the Veteran’s military service; and did not manifest within one year of discharge from the service. 7. The Veteran’s lumbar spine condition was not incurred in, or aggravated by, the Veteran’s military service; and did not manifest within one year of discharge from the service. 8. The Veteran’s bilateral upper and lower extremity peripheral nerve conditions were not incurred in, or aggravated by, the Veteran’s military service; did not manifest within one year of discharge from the service; and are not proximately due to or caused by a service-connected disability. 9. The Veteran’s left ankle condition was not incurred in, or aggravated by, the Veteran’s military service; and did not manifest within one year of discharge from the service. CONCLUSIONS OF LAW 1. The criteria for entitlement to revision of the November 2012 rating decision that did not grant service connection for post-traumatic stress disorder (PTSD), on the basis of clear and unmistakable error (CUE) have not been met. 38 U.S.C.§§ 1131, 5107, 5109; 38 C.F.R.§§ 3.102, 3.104, 3.105, 3.303, 3.304, 3.400, 4.14. 2. The criteria for entitlement to revision of a November 2012 rating decision that assigned an initial disability rating for depressive disorder, not otherwise specified (NOS), on the basis of clear and unmistakable error (CUE) have not been met. 38 U.S.C.§§ 1131, 5107, 5109; 38 C.F.R.§§ 3.102, 3.104, 3.105, 3.303, 3.304, 3.400, 4.14. 3. The criteria for entitlement to a rating of 50 percent, and no higher, effective May 12, 2017, and no earlier, for persistent depressive disorder have been met. 38 U.S.C.§§ 1155, 5107; 38 C.F.R.§§ 3.102, 4.1, 4.3. 4. The criteria for entitlement to service connection for cervical spine condition have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. 5. The criteria for entitlement to service connection for lumbar spine condition have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. 6. The criteria for entitlement to service connection for left lower extremity (LLE) radiculopathy, to include as secondary to nonservice-connected lumbar spine disorder have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. 7. The criteria for entitlement to service connection for right lower extremity (RLE) radiculopathy, to include as secondary to nonservice-connected thoracic spine disorder have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. 8. The criteria for entitlement to service connection for left upper extremity (LUE) radiculopathy, to include as secondary to nonservice-connected cervical spine disorder have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. 9. The criteria for entitlement to service connection for right upper extremity (RUE) radiculopathy, to include as secondary to nonservice-connected cervical spine disorder have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. 10. The criteria for entitlement to service connection for a left ankle condition have not been met. 38 U.S.C.§§ 1110, 1131, 5107; 38 C.F.R.§§ 3.102, 3.303, 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service with the United States Navy from January 2003 to March 2007. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 and an April 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The June 2017 rating decision denied a rating in excess of 30 percent for service-connected depressive disorder; and service connection for headache, cervical spine condition, lumbar spine condition, bilateral upper extremity radiculopathy, bilateral lower extremity radiculopathy, and left ankle condition. The April 2018 rating decision denied revision of a November 2012 rating decision which granted service connection for depressive disorder only; and assigned an evaluation of 10 percent. In May 2019, these issues were before the Board and remanded for further development. A review of the evidence of record reflects that the RO has substantially complied with the May 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A May 2020 rating decision granted a rating increase of 50 percent for service-connection depressive disorder effective February 5, 2020; and service connection for headaches effective May 9, 2017; thus, the issue of entitlement to service connection for a headache disability is no longer for Board consideration. Duty to Assist VA has a duty to notify and assist Veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Neither the Veteran nor his representative identified any other shortcomings in fulfilling VA’s duty to notify and assist. Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015). Regardless, respecting the CUE claims, the duties to notify and assist imposed by VCAA are not applicable where CUE is claimed in RO decisions. See Parker v. Principi, 15 Vet. App. 407 (2002); see also Livesay v. Principi, 15 Vet. App. 165 (2001) (VCAA is inapplicable to CUE claims in Board decisions). A claim based on CUE is fundamentally different from any other kind of action in the VA adjudicative process. A litigant alleging CUE is not pursuing a claim for benefits, but rather is collaterally attacking a final decision. See Livesay, 15 Vet. App. at 178-79. Moreover, that litigant has the burden of establishing such error on the basis of the evidence then of record. 1. Entitlement to revision of the November 2012 rating decision that did not grant service connection for post-traumatic stress disorder (PTSD), on the basis of clear and unmistakable error (CUE) And 2. Entitlement to revision of a November 2012 rating decision that assigned an initial 10 percent disability rating for depressive disorder, not otherwise specified (NOS), on the basis of clear and unmistakable error (CUE) The Veteran asserts that the RO committed clear and unmistakable error (CUE) in the November 2012 rating decision that granted service connection for depressive disorder, NOS with a 10 percent disability rating. See VA 21-526b, March 2018. The Veteran contends that the VA examiner failed to diagnose PTSD, and failed to document clearly established symptomology of comorbid depressive disorder resulting initially underrating his depressive disorder. Additionally, the Veteran argues that the correct facts, as they were known at the time, specifically in early November 2012, were not placed before the adjudicator; and the errors made by the examiner made were undebatable, which had the errors not been committed, would have manifestly changed the outcome of the subsequent November 2012 rating decision. The Veteran asserts that the VA examiner failed to identify material correct facts; and failed to identify the Veteran’s positive PTSD screening, diagnosis and ongoing treatment for PTSD. Under the provisions of 38 C.F.R. § 3.105(a), previous determinations that are final and binding will be accepted as correct in the absence of CUE. However, where evidence establishes such error, the prior rating decision will be reversed or amended. For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error of fact or law that, when called to the attention of later reviewers, compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Thus, even where the premise of error is accepted, if it is not absolutely clear that a different result would have ensued, the error complained of cannot be clear and unmistakable. Fugo v. Brown, 6 Vet. App. 40, 43-44 (1993). A determination of CUE must be based on the record and the law that existed at the time of the prior adjudication. Baldwin v. West, 13 Vet. App. 1 (1999); Caffrey v. Brown, 6 Vet. App. 377 (1994). CUE is a collateral attack on an otherwise final rating decision by an RO. Smith v. Brown, 35 F.3d 1516, 1527 (Fed. Cir. 1994). As such, there is a presumption of validity that attaches to a final decision, and when such a decision is collaterally attacked, the presumption becomes even stronger. Fugo, 6 Vet. App. at 44. Therefore, a claimant who seeks to obtain retroactive benefits based on CUE has a much heavier burden than that placed on a claimant who seeks to establish prospective entitlement to VA benefits. Akins v. Derwinski, 1 Vet. App. 228, 231 (1991). A mere misinterpretation of the facts does not constitute CUE. Oppenheimer v. Derwinski, 1 Vet. App. 370, 372 (1992); Thompson v. Derwinski, 1 Vet. App. 251, 253 (1991). Assertions that the previous adjudication at issue “improperly weighed and evaluated the evidence” does not satisfy the stringent legal requirements for CUE. See Fugo, 6 Vet. App. at 43. To establish CUE in a prior decision, the following requirements must be met: (1) either the facts known at the time of the decision being attacked on the basis of CUE were not before the adjudicator or the law then in effect was incorrectly applied; (2) an error occurred based on the record and the law that existed at the time; and (3) had the error not been made, the outcome would have been manifestly different. See, e.g., Bouton v. Peake, 23 Vet. App. 70, 71 (2008) (internal citation omitted); Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (quoting Russell v. Principi, 3 Vet. App. 310, 313-14 (1992) (en banc)). A review of the evidence of record reflects that in August 2012, the Veteran reported having suicidal thoughts in the last week; however, his faith would not allow him to do such an act. The Veteran stated that when he was stationed in California, he was a first responder to a helicopter crash where four people died, and the anniversary occurred back on Memorial Day. The Veteran reported that since that time, he has been more irritable with others, especially at work. Additionally, he reported that he has avoided stressful situations; that his family has noted that there is something wrong with him at times; and his employer has asked people who tease him to no longer tease him due to the irritability. The Veteran denied any homicidal ideation or auditory/visual hallucinations. He reported feeling worthless at times because he feels that he is not accomplishing enough and that he is not completing goals. The Veteran described this as general anxiety; and reported that he unable to stand projects that are either unresolved or at a point where there can be a quitting point until the next stage goes. The Veteran stated that this obsessiveness is increasing. He denied hoarding or other compulsive behaviors. The examiner noted a diagnosis of likely PTSD, and depressive disorder, not otherwise specified (NOS). The Veteran was prescribed medication to help with his irritability, anxiety, and depressive symptoms. In an October 2012 written statement, the Veteran’s wife reported that she has witnessed outbursts of anger, difficulty sleeping, difficulty concentrating, and emotional numbness. See VA 21-4138, October 2012. In an October 2012 typed statement, the Veteran reported that in January 2007, he was a first responder to helicopter crash where is assisted in the rescue of a naval petty officer who later died. He stated that he assisted in carrying the corpse to the morgue; and that the other helicopter members were recovered once the helicopter was retrieved from under water. See Correspondence, October 2012. In November 2012, the Veteran was afforded a VA PTSD examination. The examiner indicated that the Veteran did not conform to DSM-IV criteria for PTSD based on the current evaluation; he was diagnosed with depressive disorder. The examiner opined that it was at least as likely as not that the depressive disorder, NOS was caused by the events reported by the Veteran while serving in the military. The examiner indicated that the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he separated from the military and had inactive duty with the Naval Reserves, that he had gotten back into biking lately, and was currently doing mechanical work on cars in his garage. The Veteran described his mood prior to being prescribed medication as depressed, alone, ignored, irritated when he got things backward, and would stay up at night worrying about whether he had gotten everything done; after medication he stated that he is more accepting, has started to get back into things he did before, and was sleeping better. The Veteran reported that because of the reported stressor, he has to check things, such as vehicles, before he takes them out. The examiner indicated that the Veteran’s response to his stressor included intense fear, helplessness or horror. However, there was no indication that the Veteran persistently reexperienced the traumatic event, persistently avoided stimuli associated with the trauma or numbing of general responsiveness, or the presence of persistent symptoms of increased arousal. The examiner noted that although the Veteran reported subjective mental health symptoms, those symptoms did not rise to the level of chronicity required for rating and/or not objectively identified on mental status examination to attribute to PTSD. A November 2012 rating decision, granted service connection for depressive disorder, not otherwise specified effective August 31, 2012 with a 10 percent disability rating. At the onset, the Board notes that at the time of the November 2012 rating decision, the Veteran did not have a diagnosis of PTSD. The record reflects that the August 2012 VA examiner indicated that a diagnosis of PTSD was “likely”, and that the November 2012 examiner found that the Veteran did not meet the criteria for PTSD. Given the two reports, it cannot be found that it was undebatable that the Veteran had PTSD. The amount of weight that the RO chose to give the evidence cannot be the basis for a finding of CUE. Moreover, had the Veteran been diagnosed with PTSD and depressive disorder, separate ratings would only be permitted if the symptomatology for one condition is not duplicative of the symptomatology of the other condition. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). However, as previously noted, the Veteran did not have multiple diagnosed mental conditions. Therefore, the RO did not commit a clear and unmistakable error when it did not grant a separate rating for PTSD. The Board finds that the correct facts, as known at the time, were before the VA adjudicators in November 2012 and the statutory and regulatory provisions extant at the time were correctly applied. Therefore, the request to revise the November 2012 rating decision to include a separate rating for PTSD is denied. The remaining question is whether the RO made a clear and unmistakable error in assigning an initial rating of 10 percent for the Veteran’s depressive disorder. At the time of the November 2012 rating decision, 38 C.F.R. § 4.130 provided that a 10 percent rating was warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating was warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Again, the Board finds that the correct facts, as known at the time, were before the VA adjudicators in November 2012 and the statutory and regulatory provisions extant at the time were correctly applied. Under 38 C.F.R. § 4.126, when evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall 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. In this instance, the Veteran reported taking medication for irritability, anxiety, and depression symptoms; working with a previous employer for a year before leaving due to being teased and irritability issues; and experiencing sleep issues related to worrying prior to starting medication. The Veteran reported being married with children and described his family as close knit; helping with his mother on the weekends; attending church and bible study; and being currently employed as a custodian and ground maintenance. Although, the Veteran reported having suicidal thoughts during the August 2012 VA evaluation, the Board finds that the RO correctly applied the regulatory provisions extant at that time, as the Veteran’s disability picture more closely approximated the criteria for a 10 percent disability rating, as neither the Veteran or his wife reported suicidal ideations in their October 2012 written statements; and the Veteran denied suicidal ideations during the November 2012 VA examination. Moreover, it is not merely the existence of a symptom which allows for a rating, but rather the affect that symptom has on the Veteran’s occupational and social functioning. Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, (2002) see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Again, the amount of weight that the RO chose to give to this evidence cannot be the basis for a finding of CUE. Based on the above, the request for revision of the November 2012 rating decision to reflect an initial rating in excess of 10 percent is denied. 3. Entitlement to a rating of 50 percent effective May 12, 2017 for service-connected persistent depressive disorder Prior to the May 2020 rating decision awarding 50 percent for service-connected persistent depressive disorder effective February 2020, the Veteran asserted that a rating in excess of 30 percent was warranted. The Veteran’s persistent depressive disorder is evaluated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9435. According to the General Rating Formula for Rating Mental Disorders, a 30 percent rating is warranted for a mental disorder 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, weekly or less often panic attacks, chronic sleep impairment, and mild memory loss, such as forgetting names, directions, recent events. 38 C.F.R. § 4.130, Diagnostic Code 9435. 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 in understanding complex commands; impairment of short- and long-term memory such as, retention of only highly learned material, forgetting to complete tasks; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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; and the inability to establish and maintain effective relationships. Id. A maximum 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 and place; memory loss for names of close relatives, own occupation, or own name. Id. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A November 2012 rating decision granted service connection for depressive disorder with a 10 percent disability rating effective August 31, 2012. In November 2012, the Veteran requested an increased rating. See VA 21-4138, November 2012. A January 2013 rating decision awarded a 30 percent disabling rating increase effective January 25, 2013. This decision was not appealed and therefore, is final. Reference to the Veteran’s disability is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disability that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. For ease of review, the Board has organized the evidence by year. 2017 January 2017 records reflect that the Veteran sought mental health treatment and reported being anxious and fearful toward law enforcement concerning its opinion as to how the Veteran and his wife handled the behavior problems with the Veteran’s son who has Asperger’s. The Veteran reported that an incident had occurred in which the Veteran’s son had pulled his sister’s hair and acted out at a fast-food establishment. When the Veteran escorted his son to the vehicle, the son threw a booster seat at the vehicle, and the Veteran heard his son hitting something against a window. When he went to check on his son, his son became aggressive and punched the Veteran. The Veteran punched his son back. The Veteran reported that he was now facing third degrees assault charges. The Veteran was feeling hopeless and having thoughts of self-harm. The Veteran and his spouse were also concerned that when a female police office came to their home, the wife was unable to defend herself against accusations regarding the hygiene in the home. During an April 2017 appointment, the Veteran reported that he has to put his son in choke-hold to restrain him until he calms down. A review of the mental health notes from January 2017 to May 2017 reveal that the Veteran exhibited occasions of impaired judgment regarding his son, and fair to poor grooming and appearance. In May 2017, the Veteran submitted a claim for increased rating for service-connected disabilities. See VA 21-526b, May 2017. The Veteran reported having anger, anxiety, chronic sleep problems, depression, emotional numbing, flashbacks, guilt, intrusive thoughts, lack of emotions, lack of self-esteem, memory loss, panic attacks, period violence, problems with communication, problems getting along with people, sense of helplessness, suicidal feelings/thoughts, and suspiciousness due to his mental condition. In June 2017, the Veteran was afforded another VA mental disorder examination. The Veteran denied any psychological hospitalizations or suicide attempts since his last evaluation. The examiner noted that the Veteran “convincingly denied any current thoughts of harming or killing himself or others.” The Veteran reported that he was currently prescribed medication as prescribed. The Veteran also reported he was stressed due to current life stressors (being on pre-trial diversion, problems with his back, financial problems, helping his mother and others, deaths of numerous friends and family members since 2015), irritability, depressed mood 3-4 days per week, feelings of guilt, worthlessness, and hopelessness, social withdrawal, and anhedonia. The Veteran denied recent difficulty falling or staying asleep, difficulty concentrating, appetite changes, or weight loss/gain. The Veteran denied any other physical altercations or significant behavioral problems since his last evaluation, other than having struck his son in December 2016. The examiner indicated the Veteran’s active symptoms were depressed mood and chronic sleep impairment. The examiner noted that the Veteran described his mood as "depressed, blah"; and that his affect was slightly depressed and irritable. The examiner noted that the Veteran’s depressive disorder, NOS was updated to unspecified depressive disorder to reflect diagnostic name changes from the DSM-IV to DSM-5. The 2017 examiner considered all of the Veteran’s symptoms, whether or not in the rating criteria, and opined that they were best summarized as causing 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. This equates with a 30 percent rating. A June 2017 VA treatment note reflects that the Veteran reported that he and his wife were at risk for children being removed from the home by child protective services. The examiner noted that the children attended the appointment with the Veteran and his wife, and the children were dirty in soiled clothing. Additionally, the examiner noted that the Veteran’s grooming and hygiene were poor. (The Board notes that the Veteran was a mechanic and the records reflect “work clothing very soiled”.) The Veteran’s wife reported that the Veteran is a ‘drill sergeant’ at home and is quick to physically restrain their eldest son. The Veteran’s mood was noted as depressed. A July 2017 record notes that Veteran complained of not being able to stay focused, but noted that when he starts to get upset, he tends to leave the situation temporarily. He reported that he was sleeping okay, and his mood was steady. The Veteran reported that work is “going okay” and that he continues to work, even though it can be frustrating at times when work orders are vague or contain inadequate information. It was noted that his son had behavioral issues. November and December 2017 VA records reflect that the Veteran reported that his back disability was impairing his ability to work, that he was having “communication issues with his boss”, and that he was having frustration with his wife. His grooming and hygiene were noted to be poor. 2018 A February 2018 treatment note reflects that the Veteran reported that he was attending parenting support group through his church which supported physical punishment of children. Id. at p.25 of 161. The examiner noted that the Veteran was cautioned to use discretion and not to physically discipline his children due to his past legal issues with child abuse. The examiner also noted that the Veteran displayed limited insight into his behavior. The Veteran’s grooming and hygiene was noted as poor. October 2018 records reflect that the Veteran reported that his mood is stable, and his new job (repairing and installing electronics) is going well. The Veteran also reported that he is back in college working on a business degree. The Veteran reported that he continues to struggle in his marriage. His grooming and hygiene were noted to be good and/or fair, his thought content relevant, and his insight fair. The clinician found that his depression was currently mild. There was no suicidality or homicidally. In November 2018 correspondence, the Veteran’s representative stated that the Veteran’s wife reported that the Veteran had suicidal thoughts and that she worries that he may attempt a drug overdose. 2019 An October 2019 record reflects that the Veteran feels his mood is good, he did not perceive feeling down or discouraged, he was still taking some medication, and he did not endorse suicidal ideation. His wife thought that his mood was shorter and more irritable. The Veteran had a new son for which he was happy. His older son with Asperger’s was getting behavior therapy which seemed to have improved his behaviors. The Veteran was completing a BA in business administration online. He had been working in sales in electronics for the last 18 months. He reported that the job is going well, he gets along well with the owner, and although he has some irritation with the owner’s mother, who works in the office, he is managing it. 2020 In February 2020, the Veteran was afforded another VA mental disorders examination. The Veteran’s diagnosis was updated to persistent depressive disorder. The examiner noted that the current diagnosis meets the DSM-5 criteria and more accurately reflects the overall consistency and severity of the Veteran’s symptoms of depression. The Veteran reported that he has been married for 14 years; and that he will socialize with friends one time every two weeks. The Veteran also reported that he works for an IT company doing sales and customer service; and that he has had this full-time job for the last two years. However, he stated that his symptoms of depression make it difficult for him, at times, to attend to and carry out the tasks required for his job. The Veteran reported ongoing symptoms of depression, including anxiety, sleep disturbance, panic attacks, low levels of energy, interest, and motivation, and difficulty with short-term memory. He stated that, until one year ago, he was participating in bi-weekly outpatient mental health treatment and outpatient psychiatric treatment. He denied any recent or current suicidal ideation. The examiner indicated that the Veteran’s symptoms included depressed mood; anxiety; panic attacks more than once a week; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood. The examiner noted that the Veteran displayed a blunted range of affect. Additionally, the Veteran that his other symptoms tend to fluctuate, with flashbacks, nightmares, and disturbances of motivation and mood affecting social and occupational activities on occasion. The 2020 examiner considered all of the Veteran’s symptoms, whether or not in the rating criteria, and opined that the Veteran had occupational and social impairment with reduced reliability and productivity; this equates with a 50 percent rating. Conclusion The Board finds, in resolving reasonable doubt in the Veteran’s favor, that the evidence of record demonstrates, that since May 2017, the Veteran’s disability picture, to include the frequency, duration, and severity of symptoms, more closely approximates the criteria for 50 percent rating. A higher rating is not warranted because there is no evidence to suggest that the Veteran had occupational and social impairment with deficiencies in most areas; nor total occupational and social impairment throughout the entire pendency of this appeal. Therefore, a rating of 50 percent is assigned effective May 12, 2017, the date the claim for increased rating was received. Under 38 C.F.R. § 3.400 (o)(2), the effective date in a claim for an increased rating may be up to one year prior to the date of receipt of the increased rating claim provided that the evidence reflects a worsening of the disability during that one-year time period. See Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). However, there is no ascertainable date earlier than the date of the claim which supports exactly when the disability met the criteria for a 50 percent. The Board acknowledges the Veteran’s neglect of hygiene at times, but also notes that this has not appeared to interfere with his occupational or social functioning to any degree. The Board also acknowledges that the Veteran reported having put his son in a choke-hold on occasion, and punched him when the child punched the Veteran. The Board in no way finds that assaulting a child is appropriate; however, the Board is mindful that the child has behavioral issues, has been in therapy for his behaviour issues, and had apparently assaulted the Veteran first. Importantly, the Veteran has not been shown to be a repeat abuser of his children, his wife, or others. The Board also notes that at times, the Veteran has felt hopeless or had a thought of suicide; however, the vast majority of the time, he has denied suicidality. Moreover, no clinician has recommended that he be hospitalized, and the evidence does not support that he has attempted suicide. The Board finds it notable that the Veteran has continued to work, support his family, and attend a college program. He was also able to find a job when his initial job during the rating period was too physically demanding for him. Although his marriage may be a struggle at times, he and his wife had a new child during the rating period on appeal, and remain married. Records reflect that they are learning to work as a team to discipline their children. The record does not reflect that the Veteran has been a frequent problem at work, that he has been frequently disciplined or reprimanded, or that he has been demoted. The Board has considered the symptoms given as examples in the rating criteria but finds that the Veteran’s overall disability picture does not approximate the severity which would warrant a 70 or 100 percent evaluation. For the above reasons and bases, the Board finds that a 50 percent rating, and no higher, is warranted. 4. Entitlement to service connection for cervical spine condition AND 5. Entitlement to service connection for lumbar spine condition The Veteran asserts that service connection is warranted for cervical and lumbar spine conditions. See VA 21-526b, May 2017; VA 21-4138, May 2017. Specifically, the Veteran contends that his back and neck disabilities are a result of an injury, or his work as a heavy mechanic and damage control petty officer which required heavy lifting, bending, stooping, twisting, and working in awkward positions. See VA 21-4138, May 2017. The Veteran asserts that these conditions started while stationed in Japan and as treatment, he received massages from a shipmate who was a massage therapist. Id. Generally, to establish service connection a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease incurred or aggravated during service.” Davidson v. Shinseki, 581 F.3d 1313, 1315–16 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303, service connection is basically shown by evidence establishing that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting such service, was aggravated therein. In each case where a Veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such Veteran’s service as shown by such Veteran’s service record, the official history of each organization in which such Veteran served, such Veteran’s medical records, and all pertinent medical and lay evidence. 38 U.S.C. § 1154(a)(1); 38 C.F.R. § 3.303. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). His service treatment records (STRs) are unremarkable for back and/or neck complaints. On a November 2005 Report of Medical History form, he reported having no recurrent back pain or any back problem, and no numbness or tingling. His January 2007 separation examination report reflects that the Veteran reported having no recurrent spine pain or any spine problem; no numbness or tingling. He also denied arthritis, rheumatism, or bone or joint deformity The Veteran separated from service in 2007. A March 2007 functional capacity evaluation report notes that the Veteran was recently hired to perform dietary aide CAN duties, that he was “quite physically fit”, that he was able to perform 45 minute maximum lift test with no complaints of pain, and that he had a maximum lifting limit floor to knuckle of 170 pounds. It was noted that the Veteran “completed the entire test today well and without difficulty.” The Board finds that if the Veteran had back and/or neck complaints, it reasonably would have been noted during the evaluation. A March 2007 Department of the Navy memorandum reflects that the Veteran meets the established physical standards for enlistment in the Navy Reserve. In November 2007, the Veteran was afforded a VA general examination for compensation and pension. The Veteran’s spinal and neck exams were normal; the Veteran did not report any pain in these areas; and range of motion was noted as within normal limits. It was noted that he had no general medical complaints, and all pertinent systems were normal. Private treatment records reflect that in May 2009, the Veteran reported having increasing intensity of back, shoulder and neck pain following electrical stimulation, and neck and back popping received as treatment for right shoulder pain by a chiropractor. See Medical Treatment Record-Non-Government Facility, March 2018 at p.29, 31 of 37. The Veteran reported that he initially developed neck and shoulder pain following a viral infection the past week. In March 2018, a letter from the Veteran’s private chiropractor dated May 1, 2017, was added to the Veteran’s claims file, which stated that the Veteran had been seen off and on from May 2009 to June 2013 for cervical, mid and low back pain. See Medical Treatment Record-Non-Government Facility, March 2018 at p.10 of 13. However, the letter does not provide a probative (i.e., competent and credible) etiology for these conditions. A May 2016 private treatment record reflects that the Veteran reported having low back pain and mechanical back pain since the Navy. Examination of spine revealed palpable tenderness at L4 and T5; bilateral swelling/edema; and neck pain noted at 20 degrees during left and right rotation. A May 2017 VA treatment record reflects that the Veteran reported having chronic back pain, sciatica, and cervical radiation. In May 2017, the Veteran submitted a claim for service connection for cervical and thoracolumbar spine conditions. In a May 2017 statement, the Veteran reported that he believed his duties in the service caused his current neck and back disabilities. See VA 21-4138, May 2017. The Veteran reported that he received massages from a shipmate who was a massage therapist to help alleviate his neck and back pain. The Veteran did not report neck and back pain during his separation examination or during the VA examination, which was within one year of separation from service, and when first seen post-service for complaints, he did not mention continuity since service. Therefore, the Board places very low probative value on these statements. In a February 2018 statement, the Veteran reported that he hit his lower back and hip area during service, and that he did not document the issues because he believed it implied that it would hurt his evaluations and make it difficult to make rank. See VA 21-4138, February 2018. However, the Veteran did not report any symptomatology or history of chronic neck and back pain during his January 2007 separation examination or November 2007 VA examination. The first recorded assertion of neck and back pain associated with his military service is in 2016. Therefore, the Board places very low probative value on these statements. Essentially, the Veteran’s assertion (that he was worried that making complaints would hurt his career) would not justify denying back complaints and not making complaints upon separation and in the year after separation. Notably, his separation report reflects that he reported having had bronchitis, and hearing loss or a hearing aid. It also reflects his statement that he was currently in good health. If he had significant neck and/or back complaints or chronic complaints in service, it seems reasonable that he would have reported it, rather than specifically deny back problems when separating. In February 2018, the Veteran submitted a Disability Benefits Questionnaire (DBQ) which provided a current diagnosis of IVDS and radiculopathy. However, no etiological opinion was provided. Additionally, the Veteran reported that his neck pain started in 2012. The Veteran provided a lay statement from J.W. who served with him while he was stationed in Japan, who described helping the Veteran during incapacitating episodes. VA 21-4138, February 2018. J.W. stated that there were several occasions in service where he had to assist the Veteran in standing up because the Veteran’s back would lock up and he would be unable to stand or bend, and it got to the point where the Veteran was unable to ride his bike during their weekly outings because he would have to frequently stop and stretch. J.W. also stated that on one occasion in approximately 2005, someone had to pick up the Veteran during a bike ride because his back had locked up. These occurrences were not reported by the Veteran on his November 2005 and January 2007 evaluations, nor found on subsequent examinations shortly after serve, to include for work as a CAN aide. Therefore, the Board places low probative value on these lay statements. In March 2018, a VA medical opinion was obtained. After review of available records, the examiner could not, without resorting to speculation, determine whether the Veteran’s lumbar spine condition is due to his claimed in-service fall. In April 2018, the Veteran submitted a Military Medicine article titled ‘Aircraft carrier personnel mishap and injury rates during deployment’ in support of his claims, which discussed injuries among Navy personnel. See Medical Treatment Record-Government Facility, April 2018. However, this article discussed injury tracking and mitigation, and did not focus on injuries related to a particular military occupational specialty (MOS). Moreover, it was not specific to this Veteran or accompanied by a probative clinical opinion. In February 2020, the Veteran was afforded VA neck and back examinations. The examiner opined that the claimed neck condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because there was no complaint of pain prior to 2009, and no other mention until 2017. The examiner further stated that she did not believe that the Veteran’s neck pain started or was caused by his service or MOS. Additionally, the examiner opined that the claimed back condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness because it did not begin during active service, did not manifest within one year after discharge from service, and was not noted during service with continuity of the same symptomatology since service. Moreover, x-rays of the cervical and thoracic spine were normal. The Board has considered the Veteran’s MOS as an aviation support technician and support equipment tow tractor technician, as well as the Veteran’s statements that he worked as a heavy mechanic and damage control petty officer which required heavy lifting, bending, stooping, twisting, and working in awkward positions. See Certificate of Release or Discharge from Active Duty, October 2017; VA 21-4138, May 2017. However, the medical evidence of record does not support a finding that the Veteran’s current neck and back conditions were incurred coincident with service or manifested within one year of separation from service. See 38 C.F.R. § 3.303. The Veteran is competent to describe neck and back pain even though the symptoms were not recorded in service; however, competency and credible are not synonymous. The STRS lack documentation of manifestations sufficient to identify a disability, and lack sufficient observation to establish chronicity in service. There is also no competent and credible evidence of continuity of symptoms after service, and the evidence supports that the Veteran did not have back and/or neck complaints in service. Any clinical opinion based on such chronicity lacks probative value. Based on the above, the Board finds that entitlement to service connection for a cervical spine condition and service connection for a lumbar spine condition are unwarranted. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 6. Entitlement to service connection for left lower extremity (LLE) radiculopathy, to include as secondary to nonservice-connected lumbar spine disorder AND 7. Entitlement to service connection for right lower extremity (RLE) radiculopathy, to include as secondary to nonservice-connected thoracic spine disorder AND 8. Entitlement to service connection for left upper extremity (LUE) radiculopathy, to include as secondary to nonservice-connected cervical spine disorder AND 9. Entitlement to service connection for right upper extremity (RUE) radiculopathy, to include as secondary to nonservice-connected cervical spine disorder The Veteran asserts that service connection is warranted for bilateral upper and lower radiculopathy. See VA 21-526b, May 2017; VA 21-4138, February 2018. The Veteran reported that he hit his lower back and hip area during a fall in June 2006 and that he has noticed that his legs have subtle pain that has progressively gotten worse over the years while in the service. See VA 21-4138, February 2018. The evidence or record does not reflect that the Veteran reported or was treated for upper and/or lower radiculopathy or symptoms associated with radiculopathy during service or within one year of service. On his 2005 and 2007 Report of Medical History for separation purposes, he denied numbness or tingling, impaired use of arms, legs, hands, or feet, joint or bone deformity, arthritis, rheumatism, or bursitis. Moreover, no such problems were noted on his VA examination in November 2007. It notes that there is no history of weakness, paralysis, paresthesias, or numbness. There were also no objective findings of pain, weakness, excess fatigability, incoordination, lack of endurance, or loss of range of motion of the joints. The Veteran reported that he had no general medical complaints. Any contention as to symptoms since service lacks credibility given the record as a whole. On the February 2018 DBQ, the examiner indicated that the Veteran’s back condition caused severe radiculopathy involving the femoral and sciatic nerves bilaterally. During a February 2020 VA peripheral nerves condition examination, the Veteran reported that his upper extremity radiculopathy was worsened by his work as a mechanic, a few years prior to the 2020 examination, and has gotten better since he changed jobs. Under 38 C.F.R. § 3.310, service connection may be granted for disability that is proximately due to or the result of a service-connected disease or injury, or for the degree of disability resulting from aggravation of a nonservice-connected disability by a service-connected disability. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). As there is no probative evidence of record to support a finding that the Veteran’s peripheral nerve conditions were incurred coincident with military service or within one year of discharge, the claims are denied on the basis of direct and presumptive service connection. See 38 C.F.R. § 3.303. Further, as the Veteran’s neck and back conditions are not service-connected disabilities, service connection on a secondary basis is also denied. See 38 C.F.R. § 3.310. 10. Entitlement to service connection for a left ankle disability A June 2005 Report of Medical History form reflects that the Veteran denied foot trouble, bone trouble, or joint trouble. In June 2006, the Veteran reported sustaining a right foot injury when he slipped and fell walking back to his rack after taking a shower. See STR-Medical, May 2017 at p.39 of 142. The Veteran reported that he hit his right foot on an angle iron and landed on his right hand. The examiner noted that the Veteran did not complain of pain in his right hand, but only complained of pain on the sole of his right foot just underneath the third digit. A January 2007 separation examination report reflects that the Veteran reported having no recurrent back pain or any back problem; no numbness or tingling. See STR at p.113 of 189. As noted above, a March 2007 memorandum reflects that the Veteran meets the physical qualifications for enlistment in the Navy Reserves. The Veteran asserts that service connection is warranted for a left ankle condition because he injured his left ankle during reserves.VA 21-526b, May 2017; VA 21-4138, May 2017; Third Party Correspondence, January 2018. A review of the evidence of record revealed an April 2008 health assessment that contained a note of a left foot injury. See STR-Medical, May 2017. However, the health assessment reflects that the Veteran reported having right ankle pain. There are no records of evidence suggesting that the Veteran reported any condition or symptoms relating to a left ankle condition, to include that it occurred on a date of Reserve service. In addition, a November 2007 VA general medical examination report is unremarkable for left ankle complaints, and notes that all pertinent findings were normal. In February 2020, the Veteran was afforded a VA ankle examination. The Veteran reported that he rolled his ankle while in the shower in 2006. See C&P Examination, February 2020. However, as previously discussed, the Veteran reported injuring the sole of his right foot under his third toe during June 2006 fall. As such, the Board does not find the Veteran’s statement credible. In addition, an SXR Medical record reflects that upon radiology testing, the Veteran had a normal left ankle. The Veteran reported that he “rolls” his ankle approximately twice a year; he was noted to have abnormal range of motion. The examiner opined that it is less likely as not that the Veteran has a left ankle disability causally related to service, and noted that here was no evidence in the STRs with regard to a left ankle injury in service. In sum, there is no competent and credible evidence of a current left ankle disability which is causally related to service. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). T. WISHARD Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Camille NeSmith, 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.