Citation Nr: 21015185 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-10 932A DATE: March 16, 2021 ORDER Entitlement to an increased rating from 30 to 70 percent for unspecified depressive disorder is granted. Entitlement to an earlier effective date prior to October 1, 2018, for the grant of a 10 percent rating for left lower extremity radiculopathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. REMANDED Entitlement to a rating in excess of 10 percent for macrocytic anemia is remanded. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. Throughout the rating period on appeal, the severity, frequency, and duration of the Veteran’s unspecified depressive disorder symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 2. On June 11, 2010, the Veteran filed an informal claim for entitlement to an increased rating for his low back disability; however clear evidence of radicular findings are not found prior to October 1, 2018. 3. The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude gainful employment consistent with his education and occupational experience. 4. The evidence does not establish that due to the Veteran's service-connected disabilities he was unable to perform the basic functions of self-care and is so helpless as to be in need of the regular aid and attendance of another individual, or that he was housebound. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent for unspecified depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 2. The criteria for an earlier effective date of June 11, 2010, for the grant of a 10 percent rating for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156(c), 3.400. 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. 4. The criteria for an award of special monthly compensation benefits based on the need for regular aid and attendance for the Veteran have not been met. 38 U.S.C. §§ 1114, 1115, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1977 to July 2003. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions in September 2010, November 2011, October 2018 by the Regional Office (RO) of the Department of Veterans Affairs (VA). The issues of entitlement to special monthly compensation based on aid and attendance, entitlement to a rating in excess of 10 percent for macrocytic anemia, and entitlement to a TDIU were previously considered by the Board in January 2018 and September 2019, on which occasions the claims were remanded. 1. Entitlement to an increased rating from 30 to 70 percent for unspecified depressive disorder. The Veteran asserts that he is entitled to a rating in excess of 30 percent for unspecified depressive disorder. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The Board concludes that the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating. The Veteran’s VA medical records indicate that in June 2010 he made “threatening statements” to VA medical personnel resulting in the police being called. The report further indicates that the Veteran has a history of physical and verbal abuse toward his wife. (11/21/2013, CAPRI, p. 606). In a November 2011 VA medical report, the Veteran endorsed symptoms including depressed mood, loss of appetite, diminished interest in or enjoyment of activities, anxiety, sleeplessness, lack of energy, poor concentration and indecisiveness, social withdrawal from family and friends, recurrent feelings of hopelessness, worthlessness, and inappropriate guilt. (12/12/2019, CAPRI, p. 211). In a December 2011 letter from the Veteran’s VA medical provider, the physician indicated that the Veteran’s symptoms include depressed mood, agoraphobia, and difficulty concentrating. The physician indicated that the Veteran’s symptoms “interfered greatly with his ability to function in a social and occupational role.” (12/28/2011, Third Party Correspondence, p. 1). In a February 2012 VA medical report, the Veteran’s VA psychiatrist indicated that the Veteran separated from his wife and was becoming increasingly depressed since. His symptoms included depressed mood, low appetite, low energy, poor concentration, occasional hopelessness, and nightmares. (11/21/2013, CAPRI, p. 235). In an April 2012 VA medical report, the Veteran’s VA psychiatrist indicated that the Veteran experiences “significant symptomatology” that included depressed mood, anhedonia, anxiety, fatigue, sleep difficulties, decreased concentration and indecisiveness, decreased appetite, social withdrawal from family and friends, feelings of worthlessness, rumination, occasional feelings of hopelessness, and irritability. (12/12/2019, CAPRI, p. 64). In September 2016 the Veteran requested a follow-up with VA mental health providers due to worsening mental health symptoms. (8/29/2018, CAPRI, p. 370). In October 2018 the Veteran was afforded a VA mental health examination. At the time of the examination, he endorsed symptoms including depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner opined that the Veteran symptoms resulted in 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. (10/1/2018, C&P Exam, p. 1, 4). In a December 2019 opinion, a VA examiner opined on the functional impact of the Veteran’s unspecified depressive disorder. The examiner indicated that his symptoms “interfere significantly with the ability to work.” (12/31/2019, C&P Exam, p. 3). After a review of the evidence, the Board finds that the Veteran’s reported symptoms are consistent with a finding of occupational and social impairment with deficiencies in most areas. During the relevant period, the Veteran’s symptoms included impaired impulse control, disturbances of motivation and mood, and chronic sleep impairment. Given reports of physical and verbal abuse in the Veteran’s medical records, his VA medical provider’s opinion that his symptoms “greatly” interfere with his functional ability, and the December 2019 examiner’s opinion that his symptoms “significantly” interfere with his functional ability, the Board finds that his PTSD disability picture more nearly approximates a 70 percent evaluation. A higher disability rating of 100 percent is not warranted here, as evidence does not demonstrate that the Veteran has total occupational and social impairment. In this regard, the Veteran has been married to his current spouse since 2012. (8/28/2020, Medical Treatment Record, p. 1). While evidence does indicate a history of physical and verbal abuse toward his family during the period on appeal, the Board finds these actions are most consistent with impaired impulse control that results in deficiencies in his family relations. His ability to maintain a relationship with his spouse indicates that his symptoms to not rise to the level of total social impairment. Therefore, the Board finds that a higher rating of 100 percent is not warranted. In sum, the Board finds that the totality of the evidence demonstrates that the disability picture for the Veteran’s unspecified depressive disorder warrants a 70 percent rating. As total social and occupational impairment has not been shown, a 100 percent evaluation is not warranted. 2. Entitlement to an earlier effective date prior to October 1, 2018, for the grant of a 10 percent rating for left lower extremity radiculopathy. The Veteran asserts that he is entitled to an effective date of June 11, 2010, for the grant of a 10 percent rating for left lower extremity radiculopathy. The award is currently effective as of October 1, 2018. In general, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, pursuant to 38 U.S.C. § 5110(b)(2) "[t]he effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability has occurred, if the application is received within one year from such date." See also 38 C.F.R. § 3.400(o)(1)(2) (effective date of award of increased rating is the earliest date as of which it is factually ascertainable that an increase in disability has occurred if the claim is received within one year from such date, otherwise, date of receipt of claim). At the outset, the Board must determine the appeal period for the claim currently at issue. On June 11, 2010, the Veteran filed an informal claim for entitlement to an increased rating for his service-connected lumbar spine disability. In the informal claim, the Veteran asserted that he was now experiencing radiculopathy in his left lower extremity. (6/11/2010, VA 21-4138). The RO interpreted the Veteran’s statement as a claim for an increased rating for his lumbar spine disability and a petition to reopen a previously denied claim for entitlement to service connection for left lower extremity radiculopathy. The RO denied both claims in a September 2010 rating decision. The Veteran appealed the RO’s decision, and the claims were ultimately considered by the Board in a January 2018 decision. At that juncture, the Board denied the Veteran’s petition to reopen a claim of service connection for left lower extremity radiculopathy, but remanded his claim for an increased rating for a lumbar spine disability for further medical development. Generally, a determination made by the Board is final as of the date on the face of the decision and is not subject to further review by VA. See 38 C.F.R. § 20.1100(a). However, a remand does not constitute a final decision. See 38 C.F.R. § 20.1100(b). In the present case, the Board’s January 2018 decision made a final determination regarding the Veteran’s petition to reopen his claim of service connection for left lower extremity radiculopathy, but also remanded the Veteran’s claim for an increased rating for a lumbar spine disability, which is not a final decision. When evaluating a lumbar spine disability, Note 1 to the General Rating Formula for Diseases and Injuries of the Spine directs VA to evaluate any associated neurologic abnormalities separately under an appropriate diagnostic code. See 38 C.F.R. § 4.71A. Therefore, when considering an increased rating for a lumbar spine disability, all associated neurologic abnormalities, including radiculopathy, are at issue as well. In remanding the Veteran’s claim for an increased rating for a lumbar spine disability, the Board effectively issued a “preliminary order” directing the RO to determine the current severity of the Veteran’s lumbar spine disability and all associated neurologic abnormalities, including his left lower extremity radiculopathy. See 38 C.F.R. § 4.71A; 38 C.F.R. § 20.1100(b). As such, the Board finds that a final decision was not made regarding the issue of entitlement to a compensable rating for left lower extremity radiculopathy in the January 2018 decision. Therefore, the Board may consider whether the Veteran is entitled to a rating during the period prior to the January 2018 decision. As discussed above, the Board finds June 11, 2010 to be the appropriate date of claim for the radicular disorder of the left lower extremity in this case. However, the effective date is based on the later of the claim date or the date entitlement arose. While clinical records in 2010 reflect complaints of paresthesias, it is noted that comprehensive neurologic examination in 2010 and 2011 were negative for objective findings consistent with radiculopathy. A clinical record that did reflect complaints of radiating pain to the legs contained a note that the ache was not in a neuropathic pattern but rather was a general ache. Overall, while the claim date can be found to date back to June 11, 2010, the weight of the evidence does not support a finding that entitlement arose prior to October 1, 2018, and thus an earlier effective date is hereby denied. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities precluded substantially gainful employment. A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25.    Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 4.16(a).    In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)).  The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The Veteran was last employed in October 2011 as a human resources supervisor. (8/28/2020, Medical Treatment Records, p. 3). His social security administration records indicate that he last earned income in 2012. (5/31/2019, SSA Letter, p. 3). For the period on appeal, service connection has been in effect for the following disabilities: unspecified depressive disorder, central disc protrusion, right knee degenerative joint disease, left knee degenerative joint disease, tinnitus, gastroesophageal reflux disease, macrocytic anemia, right lower extremity radiculopathy, hammer toe, left lower extremity radiculopathy, hearing loss, hemorrhoids, status post right inguinal hernia repair, residual scar, atopic dermatitis, corns and calluses, left foot plantar fasciitis, and right foot plantar fasciitis. His combined rating is 80 percent from October 11, 2010. As such, the Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a). Therefore, the Board must determine if the aforementioned service-connected disabilities preclude substantially gainful employment during this period.   In December 2019 several unemployability statements were proffered by a VA examiner. The examiner indicated that the Veteran’s back, knee, foot, and radiculopathy disabilities limit him to “sedentary work,” which the examiner defined as “[e]xerting up to 10 pounds of force occasionally and/or a negligible amount of force frequently to lift, carry, push, pull. Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met.” Additionally, a VA psychologist opined that the Veteran’s mental health symptoms “interfere significantly with the ability to work.” (12/30/2019, C&P Exam, p. 3); (12/31/2019, C&P Exam, p. 3). The Veteran provided a private vocational examination, dated in December 2016. The private vocational expert opined that the Veteran “is precluded from securing and following substantially gainful employment as a result of his service-connected disabilities . . ..” (8/28/2020, Non-Government Medical Treatment Record, p. 16). Based on the aforementioned, the evidence is deemed to be at least in equipoise as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, a TDIU is warranted. 4. Entitlement to special monthly compensation (SMC) based on aid and attendance. "SMC is available when, 'as the result of service-connected disability,' a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities." Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). Section 1114(l) provides five distinct ways for a veteran, "as the result of service-connected disability," to qualify for this rate of SMC: (1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having "such significant disabilities as to be in need of regular aid and attendance." 38 U.S.C. § 1114(l). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. It is not required that all of the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there is a constant need. Id. The Veteran contends that he requires the assistance of another person to attend to his activities of daily living. In support of his claim, he submitted a VA Form 21-2680 “Examination for Housebound Status or Permanent Need for Regular Aid and Attendance” completed by his VA primary care provider in August 2020. The examiner indicated that the Veteran is unable to feed himself, shave, or put on clothing due to his right-hand disability. Further, he is unable to prepare his own meals due to an inability to tolerate prolonged standing and required assistance with hygiene needs due to back and joint pain. The Veteran’s spouse assists him with medication management. (8/28/2020, VA 21-2680, p. 2-3). The Board finds that the weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. In this regard, the August 2020 examiner attributed the Veteran’s inability to feed himself, shave, or dress himself to his non-service-connected right-hand disability. Further, a VA examiner indicated that his need for aid and attendance was related to a non-service-connected March 2011 stroke. (2/10/2020, C&P Exam, p. 3). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for macrocytic anemia is remanded. Upon review of the claims file, the Board has determined that there has not been substantial compliance with the previous remand directives regarding the issue of entitlement to a rating in excess of 10 percent for macrocytic anemia. Therefore, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the Board’s September 2019 opinion, the Veteran’s claim was remanded so that his macrocytic anemia could be assessed under the pre-and-post December 2018 rating criteria. As noted by the Board in the September 2019 remand, effective December 9, 2018, the regulations pertaining to the rating of hematologic and lymphatic systems, including anemia, were amended to provide detailed and updated criteria for rating disabilities pertaining to the hematologic and lymphatic systems. As the updated regulations became effective during the pendency of the Veteran’s appeal, the Board concluded that a VA examination under both versions of the rating criteria was necessary. The Veteran was afforded a new VA hematologic and lymphatic systems examination in January 2020. However, the January 2020 examination did not evaluate the Veteran’s macrocytic anemia under the pre-December 9, 2018, regulations, as directed by the Board. As such, the Board finds that there has not been substantial compliance with the September 2019 remand directives. 2. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded. Upon review of the claims file, the Board has determined that further development is necessary before the claim can be adjudicated. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In October 2018 the Veteran underwent a VA back disabilities examination that evaluated the current severity of his left lower extremity radiculopathy. The Board finds that the October 2018 examination is inadequate for rating purposes as the examination report is internally inconsistent and inconsistent with the Veteran’s VA medical records. In this regard, the examiner indicated that the Veteran’s symptoms included mild numbness, but also indicated that the Veteran had normal sensation throughout his left lower extremity. (10/1/2018, C&P Exam, p. 5). Further, the examiner indicated that the Veteran does not experience paresthesias, however, the Veteran’s VA medical records document an active diagnosis of paresthesias throughout the period on appeal. (5/17/2017, CAPRI, p. 107, 295, 303). Given the aforementioned inconsistencies the Board finds that the examination is inadequate to determine the current severity of his left lower extremity radiculopathy. As such, the Board finds that the claim must be remanded for further development. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from May 2020 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected macrocytic anemia. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should evaluate macrocytic anemia under the pre-and-post December 2018 rating criteria. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left lower extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.