Citation Nr: 21016129 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 95-03 535 DATE: March 19, 2021 ORDER Entitlement to an effective date earlier than September 15, 2004 for the grant of service connection for major depressive disorder (MDD) is denied. Entitlement to a rating 70 percent, but no higher, for MDD associated with lumbosacral strain is granted. Entitlement to a total disability individual unemployability rating (TDIU) is granted. REMANDED Entitlement to service connection for a neck disability is remanded. Entitlement to service connection for a colon disability, to include ulcerative colitis is remanded. Entitlement to a rating in excess of 10 percent for residuals of a left knee injury prior to February 19, 2002 and in excess of 10 percent from April 28, 2003 is remanded. Entitlement to a rating in excess of 10 percent for lumbosacral strain prior to February 1, 2005 and in excess of 20 percent thereafter is remanded. FINDINGS OF FACT 1. The Veteran’s request to reopen a previously denied service connection claim for MDD was received by VA on September 15, 2004; and, an award of service connection has been assigned effective from that date. 2. For the entirety of the period on appeal, the Veteran’s MDD most nearly approximated occupational and social impairment with reduced reliability and productivity; however, at no point did his disability reflect total occupational and social impairment. 3. The Veteran’s service-connected disabilities precluded gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than September 15, 2004, for the award of service connection for MDD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.400. 2. For the entire period on appeal, the criteria for a 70 percent rating, but no higher, for MDD, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, DC 9434. 3. The criteria for TDIU for the period from September 15, 2004, but no earlier, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to July 1989. This matter comes before the Board of Veterans’ Appeals (Board) from rating decisions of the Philadelphia, Pennsylvania, Department of Veterans’ Affairs (VA) Regional Office (RO). The relevant administrative history is as follows: In July 1994, the RO denied a claim for a compensable left knee disability. The Veteran appealed the increased rating issue. In April 1997, the RO granted the increased rating claim for the left knee, to the extent that it assigned a 10 percent rating with an effective date of February 5, 1996. In May 2007, the Veteran was afforded a videoconference hearing before the undersigned, who is the Acting Veterans Law Judge rendering the determinations in these claims and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C. § 7102(b). In August 2007, the Board denied the claim. The Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In August 2008, while his case was pending at the Court, the VA’s Office of General Counsel and Veteran’s representative filed a Joint Motion requesting that the Court vacate the Board's August 2007 decision. That same month, the Court issued an Order vacating the August 2007 Board decision. In December 2010, the Board remanded the claim. In July 2012, the Board granted the claim, to the extent that it assigned a 20 percent rating, with an effective date from February 19, 2002 to April 28, 2003, and a 10 percent rating thereafter. The Veteran appealed to the United States Court of Appeals for Veterans Claims (“Court”). In October 2013, the Court issued an Order and a Memorandum Decision that vacated that portion of the Board’s decision which kept the Veteran's rating at 10 percent (i.e., prior to February 19, 2002, and as of April 28, 2003). In September 2014 and April 2017, the Board remanded the issues on appeal for additional development. As for the other issues on appeal, in April 2005, the RO increased the Veteran’s rating for his service-connected lumbosacral strain from 10 percent to 20 percent disabling, with an effective date of February 1, 2005, and denied a claim for a TDIU. The Veteran appealed the increased rating issue, and the TDIU issue. In its July 2012 decision the Board denied a rating in excess of 10 percent for service-connected lumbosacral strain prior to February 1, 2005, and remanded the issue of entitlement to a rating in excess of 20 percent as of February 1, 2005, for additional development. The Veteran appealed to the Court and in the October 2013 Order and a Memorandum Decision vacated that portion of the Board’s decision which kept the Veteran's rating for service-connected lumbosacral strain at 10 percent prior to February 1, 2005. In February 2013, the RO granted service connection for MDD, evaluated as 30 percent disabling, effective September 15, 2004. The Veteran has appealed the issue of entitlement to an initial evaluation in excess of 30 percent. The Veteran also appealed the effective date of service connection. These matters were remanded in June 2013 for the issuance of a statement of the case. This directive was completed in March 2015. The Veteran timely appealed both issues in April 2015. An April 2017 remand directed additional development be conducted, to include obtaining records. Such records have been obtained; therefore, substantial compliance has been achieved. In November 2015, the RO denied claims for service connection for a neck condition, a colon condition, ulcerative colitis, and a right shoulder condition. The Veteran properly appealed the denials of the neck, colon, and ulcerative colitis, but did not appeal the right shoulder condition therefore it is not on appeal. The Board acknowledges the right shoulder claim was listed as an issue in the April 2017 remand. However, the inclusion of this issue was done in error as the record is negative for an indication that the Veteran or his representative ever filed a notice of disagreement. The Court has held that a notice of disagreement is a required element necessary to initiate appellate review. See Roy v. Brown, 5 Vet. App. 554, 555 (1993); see also Percy v. Shinseki, 23 Vet. App. 37 (2009). The record is also negative for the issuance of a statement of the case or the submission of a Form 9 on this issue. As the Board is not permitted to waive the jurisdictional-conferring notice of disagreement requirement, the claim is not, and has never been, properly in appellate status and it will not be addressed herein. See Manlincon v. West, 12 Vet. App. at 240. Finally, while pending Board adjudication, the RO granted service connection for radiculopathies of the bilateral lower extremities associated with the Veteran’s lumbar spine disability in July 2018 and October 2019. The Veteran appealed these decisions; however, the Board will not take jurisdiction over them as they are pending a Board hearing. The Veteran also requested a second Board hearing to testified as to entitlement to TDIU based on his now service-connected radiculopathies. This hearing request is pending but has been delayed because of the outbreak of the COVID-19 novel coronavirus pandemic. That said, as discussed below, the Board has granted the claim for TDIU. The Board finds no prejudice in adjudicating this appeal as it constitutes a full grant of the benefits sought. Effective Date 1. Entitlement to an earlier effective date for the grant of service connection for MDD. VA law provides that the effective date for an award of disability compensation for a reopened claim shall be the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(r). VA regulations, effective prior to March 24, 2015, provided that the terms claim and application mean a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Generally, the date of receipt of a claim is the date on which a claim, information, or evidence is received by VA. 38 C.F.R. § 3.1(r). A sympathetic reading as to all potential claims raised by the evidence is required. Szemraj v. Principi, 357 F.3d 1370, 1373 (Fed. Cir. 2004). The Board, however, is not required to conjure up issues that were not raised by an appellant. See Brannon v. West, 12 Vet. App. 32 (1998). A VA failure of a duty to assist a veteran or even the existence of grave procedural error do not render a VA decision non-final. See Cook v. Principi, 318 F.3d 1334, 1348 (Fed. Cir. 2002). The Veteran seeks an earlier effective date for the grant of service-connection for his MDD. In brief, per his VA Form 9, he asserts filing an informal claim for service connection for depression and homelessness in 1996. In support of his contention, he asserts speaking with a “Mr. Daughtery” on February 2, 1996 to discuss symptomatology equating to a 100 percent rating. In addition, he has submitted a treatment record from February 1996 noting a conversation with a Mr. Daughtery. Lastly, he also disputes “not filing a timely appeal in 2003, because [he] was incapacitated date [sic] 2/2/2004 [at] Holy Spirit Hospital.” Entitlement to an earlier effective date is not warranted. VA records show the Veteran’s original application for service connection for depression secondary to service connected disabilities was received on February 24, 2002. The RO denied entitlement to service connection for paranoid schizophrenia (claimed as depression), as secondary to the service-connected disabilities of left knee injury, low back strain, bilateral otitis media, Tietze syndrome, and hearing loss, right ear. The Veteran was notified of the determination and his appellate rights by correspondence dated May 23, 2003. On September 15, 2004, VA received correspondence from the Veteran including a request to appeal his service connection claim for a psychiatric disability. Following intervening rating decisions in April 2005, April 2007, and June 2008, a February 2013 rating decision ultimately granted entitlement to service connection for MDD. This award was assigned an effective date of September 15, 2004. The present appeal followed. VA records show the Veteran was adequately notified of the previous decision denying service connection on May 23, 2003, and of his appellate rights. The Veteran did not indicate, nor does the claims file reflect, he did not receive this notification. Per the claims file, notification was sent to the address of record; this address was confirmed by both the Veteran and his representative in March and April 2004. That said, no correspondence was received by VA within one year of the notification of denial expressing any disagreement with the decision. There is likewise no evidence that new and material evidence was received within a year of the decision. As such the decision became final. On review of the record, there is no correspondence dated prior to September 15, 2004, that may be reasonably construed as a request to reopen his service connection claim, therefore an earlier effective date is not warranted. The Board acknowledges the Veteran’s assertion of being unable to timely appeal his May 2003 denial of service connection because of incapacitation in February 2004. To support this assertion, he has submitted a February 2, 2004 Holy Spirit Hospital record noting treatment for anxiety. This evidence does not support entitlement to an earlier effective date. Here, the record is clear that both immediately prior to, and after, reported hospitalization, the Veteran was actively communicating with the RO regarding other claims for disability benefits. To that end, the claims file reflects that the Veteran submitted written correspondence to the RO on March 5, 2004 to file a claim for increased rating and to submit a VA Form 9 for other claims. These filings predate, by months, the close of his appeal period for service connection which would have ended in May 2005. They also confirm his ability to actively engage in the appeal process, despite his reported impairing symptomatology. Moreover, even if the Board were to toll the Veteran’s notice of disagreement for the month of February, the claims file is negative for any indication of disagreement with the denial of service connection until September 2004; nearly four months after the end of the appeal period. The above does not support entitlement to an earlier effective date. Finally, to the extent that the Veteran asserts filing an initial informal claim for service connection for depression in 1996, the Board emphasizes that the May 2003 rating decision became final. Therefore, the earliest date of reopening remains September 15, 2003. Even considering the assertions in arguendo, records from 1996 do not contain a formal or informal request indicating an intention to file for service-connection. See Brannon v. West, 12 Vet. App. 32 (1998). To the contrary, these records, to include those cited to by the Veteran, only reflectattempts to apply for a “homeless program” and a domiciliary program. In short, the Board finds the Veteran’s request to reopen a previously denied service connection claim was received by VA on September 15, 2004, and that the award of service connection has been assigned effective from that date. The effective date of September 15, 2004 is proper. Increased Rating Legal Criteria MDD is rated under 38 C.F.R. § 4.130, Code 9434. A 30 percent rating is assigned 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 satisfactory, 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; or mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. A 50 percent rating is warranted for 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 (e.g., 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. 38 C.F.R. § 4.130, DC 9434. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. Id. The maximum (100 percent) rating is warranted 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 and others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in the various levels of rating criteria in § 4.130 are non-exhaustive, meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Vasquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442(2002). However, the symptoms listed at the various levels of rating criteria in § 4.130 are deemed by VA to be representative of the corresponding levels of occupational and social deficiency. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Thus, the fact that a claimant has a symptom listed in one evaluation level without an analogue at lower evaluation levels indicates that the presence of that symptom alone may be cause for finding that the claimant's condition meets that particular level of disability. Id. In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when the Veteran was actually experiencing symptoms is what is relevant for assigning rating effective dates, not when evidence was created. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings. Effective August 4, 2014, VA revised the portion of the Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replace them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. Because the current appeal was certified to the Board in October 2016, only the DSM-5 applies. 2. Entitlement initial evaluation in excess of 30 percent for service-connected MDD. The Veteran seeks an increased rating for his service-connected MDD. As this is a claim for initial rating, the relevant period on appeal is from date of claim, September 15, 2004 forward. He is currently in receipt of a 30 percent rating under DC 9434. Entitlement to a 70 percent rating, but no higher, is warranted for entirety of the period on appeal. Turning to the record, on September 2005 consultation report the Veteran reported being under “a lot of stress” both at work and at home. He reported increasing anxiety, difficulty sleeping more than a few hours, low energy, difficulty concentrating, decreased appetite, and loss of interest and pleasure in activities. He reported feeling overwhelmed to the point of needing to quit his job. He reported feelings of hopelessness but denied suicidal ideation. He reported experiencing homicidal thoughts while working at his job but denied homicidal ideation currently. The physician noted no history of any manic episodes. The Veteran denied hallucinations, delusions, suicide attempts, or inpatient hospitalization. The physician noted that the Veteran suffered from “a lot anxiety in social situations and [felt] nervous around people. He worrie[d] about being watched and that others [would] criticize him.” At the time of evaluation, he confirmed living with his children and his girlfriend for nine years. In October 2005, the Veteran was afforded a psychological evaluation in conjunction with a claim for Social Security Administration. On examination, symptoms noted were appetite disturbance, sleep disturbance, psychomotor agitation or retardation, depressed energy, feelings of guilt or worthlessness, difficulty concentrating or thinking, and hallucinations, delusions or paranoid thinking (later confirmed by the evaluator as paranoid thinking). He also had prominent anxiety disturbance and persistent irrational fear. He had moderate restriction of activities of daily living. Marked difficulties in maintaining social functioning and in maintaining concentration, persistence, and pace. He had one or two repeated episodes of decompensation each of extended duration. In concluding, the evaluator noted the Veteran still lived with his girlfriend and children. The Veteran avoided leaving the house whenever possible and was highly dependent upon others for his activities of daily life. During March 2007 psychiatric treatment, the Veteran denied suicidal and homicidal ideation or plans. He denied auditory and visual hallucinations but indicated a sensation of feeling as if he would be attacked on the street whenever outside of his house. He was casually dressed, with restrictive affect, some anxious features, and limited speech. Diagnosis was paranoid disorder and major depression. Remaining 2007 records are duplicative with exception that the Veteran was experiencing greater domestic difficulties with his common law wife. June 2008 records note the Veteran spent the majority of his time indoors in an attempt to avoid people. He reported doing errands either very early or late in the day. He was noted as very anxious and experiencing panic attacks if caught in situations that were anxiety provoking to him, including being around people. At the time of treatment, he was noted as single, but heavily invested in the lives of his children. The Veteran reported feeling down for most of the day as if there were no goal or purpose in his life. He denied suicidal or homicidal thoughts. The physician noted that in addition to general chronic low-grade depression, the Veteran suffered from episodes of MDD wherein he would feel very sad, down, hopeless, and would not get up to eat or go to work for many days in a row. The physician specified that the last time the Veteran felt this way “was a few years ago.” Following examination, the examiner endorsed obsessive compulsive behavior. At the time of examination, he was alert and fully oriented. He had good hygiene and grooming. No motor abnormalities. He maintained normal speech, without formal thought disorder. He was goal oriented, and quite logical. There was no auditory or visual hallucinations or delusions. He denied presence of suicidal or homicidal ideations. He had good insight into his symptoms and was noted to have proper judgment with grossly intact cognition. June 2009 records are much the same but note the Veteran had a new girlfriend who had moved in with him and his children and that it was going well. September 2009 records note good hygiene. April 2010 records note appropriate appearance. He oriented times three and alert, with no suicidal or homicidal ideation or intent, or any auditory or visual hallucinations. Thought processes were clear, coherent, and goal directed. Thought content was consistent with statements made about recent events. Judgment and insight were fair. August 2010 records note the Veteran had one or two friends. The Veteran also reported loving to watching his children play sports. On May 2010 VA examination, the Veteran reported feeling hopeless, because of his reported pain symptomatology and unemployment. He reported sleeping two to three hours a night, waking up for four hours, then sleeping an addition two to three hours. He reported spending most of the day by himself. He reported his main concern was taking care of his two children and being afraid that they would be taken away by “Children and Youth or by his ex-girlfriend.” At the time of examination, he reported living with his children and being unmarried. He reported the mother of his children previously lived with him but that they had broken up the year previous. However, she continued to visit from time to time. He reportedly wore black prescription sunglasses to avoid letting people know that he was sad. He reported crying often without letting people notice. He reported suicidal thoughts and said that “life would be better without [him] [but he would] not do it for the sake of the kids.” He denied socializing with anyone. He reported no relationship with his sister or his biological mother. He reported no longer engaging in athletic activities because of his physical impairments. During interview, he was oriented times four and alert. He gave a coherent account of his life. Affect was restricted in range and intensity. There was no smile and no warmth. His speech was normal, without formal thought disorder. There were no signs of delusional or psychotic thinking, no auditory or visual hallucinations and no delusions. He denied the presence of suicidal or homicidal ideations. He had poor insight into his symptoms, and seemed to have poor judgment indicated by his change of jobs and inability to get along with the mother of his children. He had poor hygiene and disliked having people stand next to him. The examiner noted having to leave the window open during the session. The examiner noted that the Veteran tended to become sweaty and to have racing heart and palpitation when anxious as he was during the session. The examiner categorized the Veteran’s symptoms as severe. Severe symptoms were listed as pessimism, past failure, loss of pleasure, punishment feelings, self-criticalness, agitation, loss of interest, indecisiveness, worthlessness, loss of energy, changes in sleep pattern (less), irritability, changes in appetite (less), tiredness or fatigue, and loss of interest in sex. Moderate symptoms were sadness, guilty feelings, self-dislike, crying, and concentration difficulty. Mild symptoms were suicidal thoughts or wishes. Axis I diagnosis was recurrent major depression that was moderate to severe. The examiner noted private care physician had made the same diagnosis including severity level. The examiner noted on Axis IV that the Veteran was unemployed with poor interpersonal skills and poor health. A November 2011 addendum VA examination was provided to clarify the nature and etiology of his condition. On examination, the Veteran reported that his “kids [kept him] alive.” He reported struggling with depression and suicidal thoughts. He reported nonspecific homicidal thoughts indicating that he felt like hurting anyone because of his mood. He reported improvement in mood because of his medication. He reasserted that his children were very important to him. He reported living alone and doing so for the past two years. He reported being unable to work primarily because of his pain. He also reported depression and social anxiety which he believed played a role in unemployment. He reported that when he was with his children his mood improved. He again noted impaired sleeping ability. He reported his typical day included waking his children, getting them dressed, and ready for school. He denied having close friends because he was “not the social type.” He reported his only activities involved his children, taking them to school, their sporting events, or other activities. He reported leaving his common law wife of 15 to 16 years two years prior. Symptoms reported at the time of examination were daily depression and lack of energy. He reported very poor sleep mostly due to pain. Appetite appeared fair. He denied anhedonia but reported it was difficult to enjoy things. He reported feeling somewhat irritable but denied psychomotor agitation or psychosis or mania. He appeared anxious. He complained of social anxiety, but examiner did not have time to delve into that symptom because the Veteran arrived late for examination. On August 2012 psychological evaluation, the Veteran reported receiving VA counseling and medication management. He reported social anxiety where he would break out in a sweat if in a crowd or classroom. He reported being nervous around others. Symptoms on examination were depressed mood, feelings of low energy/fatigue, anxiety, increased irritability, anhedonia, feelings of hopelessness, reduced motivation, low self-esteem, and difficulties concentrating. The physician noted that the Veteran’s chronic pain precluded working and created financial stressors which worsened his mood. The psychologist also indicated that chronic pain created an increased emotional toll and led to depression, anxiety, frustration, and irritation. The psychologist concluded that the Veteran’s mental and physical disorders placed him at significant disadvantage for the work force and made him a hiring risk. In October 2012, a VA psychiatrist submitted a “Physician’s Certification” describing the Veteran’s MDD and obsessive-compulsive disorder as chronic, severe, and disabling. The psychiatrist noted that the Veteran’s chronic psychiatric impairments limited his capacity to engage in activities of daily living. In addition, the Veteran had poor interpersonal skills and an inability to work with authority figures. On April 7, 2016 psychiatry evaluation, the Veteran denied death wishes, psychotic symptoms, auditory visual hallucinations, suicidal/homicidal ideation or intent. His mood was fair and stable. His sleep and appetite were at baseline status. His overall psychic status appears to be stable to present time. Mental status examination revealed a neutral mood and congruent affect. He again denied any suicidal or homicidal ideation or intent or plan. He denied auditory or visual hallucination. He was alert and oriented times three. Thought processes were clear coherent and goal-directed. Thought content was consistent with statements made with recent events. Judgement and insight were intact. Cognition appeared grossly intact. Motor behavior appeared normal. Appearance was unremarkable, he was casually dressed with normal grooming and hygiene. Speech and language were spontaneous, coherent, and appropriate. Imminent risk of suicide/harm to self/and/or others was judged to be low. An April 21, 2016, social work note documented the Veteran’s report of threatening his son’s friends at a banquet when he determined they were being inappropriate at the event. He reported having visions of wanted to hurt the young adults. The social worker noted homicidal ideation but no plan or intent. On June 2016 VA examination, diagnoses were recurrent mild MDD and obsessive compulsive disorder. The examiner indicated that symptomatology of the diagnoses were intermixed to the point that they could not be separated. The examiner opined that the Veteran suffered from 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 living in a home that he had purchased in 2013, with his two sons. He reported his relationship with his sons was “stressful” due to their poor performance in school. He reported being a single father with no assistance from the mother of his children. He reported no relationship with his own parents or siblings. He reported having no current romantic relationships or friends generally. He reported being unemployed since 2005. He reported spending his time at home doing chores until his children returned from school and then taking them wherever they want to go as their driver. He reported meeting most of his girlfriends online. He noted not having a current girlfriend but having several in the time since last examination. Symptoms noted on examination were depressed mood, suspiciousness, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Veteran’s grooming and dress were considered appropriate. He continued to wear sunglasses. Affect was flattened across all topics. He was oriented to all spheres. Speech was goal-directed and coherent, and there was no overt evidence of a thought disorder, psychosis, or delusional beliefs. The Veteran denied experiencing auditory or visual hallucinations, either currently or in the past. The Veteran denied any current suicidal ideation or desire to harm anyone else. The Veteran was future-oriented and expressed a sense of responsibility toward loved ones. At the time of examination, the Veteran was considered a low risk of imminent harm to self or others. The examiner noted that the Veteran’s descriptions of past interpersonal problems were lurid but tended to change or become vague when the Veteran was pressed for details. It was unclear to the examiner if the Veteran was over-reporting his problems or simply a poor historian. In June 2016, the Veteran underwent psychological evaluation. On evaluation he reported on-going depression and anxiety. He reported memory loss, insomnia, suicidal and homicidal ideation, feeling of hopelessness, and significant social anxiety and difficulty being out in public. The psychologist, noted that chronic pain, and the functional limitations associated with the pain, takes a significant emotional toll on individuals which includes depression, anxiety, irritability, frustrations, decreased energy levels, and reduced motivation. The psychologist also noted that individuals with pain associated psychological disorders also tend to have difficulty obtaining/maintaining employment. August 2013 treatment records note the Veteran’s girlfriend accompanied him to appointments. 2014 through 2018 records note interactions with friends and a friend accompanying him to appointments. 2018 and 2019 records continue to document the Veteran having a girlfriend. Of note, a May 5, 2018 record lists a J.L. as the Veteran’s wife and alternate point of contact. The record also indicated they lived together. On August 2019 VA examination, diagnosis was recurrent MDD unspecified. He had occupational and social impairment with deficiencies in most areas. At the time of examination, the Veteran lived with his two sons, his daughter-in-law, and grandson. He reported on-going depression as he was exhausted due to his physical pain. He reported avoiding going out in the community and minimizing contact with others, so that there would be less chances from him to become defensive. He reported being on high alert for detecting signs of disrespect to him or his family and reported responding with violence against a potential offender. His most recent history of violence was 20 years prior. He denied homicidal plans. Symptoms on examination were depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation, and impaired impulse control, such as unprovoked irritability with periods of violence. Behavioral observations were the Veteran appeared tense, depressed, dysphoric, and guarded. He reported being too jealous when in romantic relationships. He was negative for auditory or visual hallucinations or suicidal or homicidal ideations. As to homicidal ideations, the Veteran clarified he did not have homicidal plans. The examiner concluded by stating the Veteran appeared to be unstable and guarded. The examiner also opined that the Veteran’s propensity for anger and frustration as well as his lack of sleep and energy, and overall social and judgement impairment would interfere with his capacity to sustain gainful employment. Entitlement to a 70 percent rating, and no higher, is warranted for the entirety of the period on appeal. The Court has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). Consistent with Bankhead, the record discloses multiple instances where suicidal ideation was reported and/or discussed. The Veteran is also shown throughout the appeal to have difficulty with adapting to stressful circumstances. Moreover, he has demonstrated difficulty, and at times an inability, to establish and maintain effective relationships. He has also struggled with anxiety, depression, a tendency towards isolation, irritability, anger, impaired concentration, and sleep disturbances. Although the 2016 VA examiner found symptomatology equivalent to a 30 percent rating, the examiner also specified being uncertain as to the true extent of the Veteran’s condition. Moreover, other clinicians specified that the Veteran suffered from symptomatology which precluded employment and severely reduced his social functioning ability. The overall combined evidence is more closely aligned with a 70 percent rating. However, a 100 percent rating is not demonstrated by the evidence of record, as the Veteran’s MDD is not manifested by total social impairment. 8 C.F.R. § 4.130, DC 9411. Throughout the appeal, the Veteran has maintained a relationship with his children and later with his grandchild. They along, with his son’s significant other, have lived with the Veteran for large portions of the appeal. The Veteran has throughout the appeal been in relationships with women, to include his former common law wife and live-in girlfriends. The records also reflects that on numerous occasions the Veteran was accompanied by a “friend” to VA appointments. Other VA records document his reports of having at least one or two friends. Such belies a finding of total social impairment. In addition, he did not exhibit gross impairment in thought processes, or communication; persistent delusions or hallucinations; grossly inappropriate behavior; time and spatial disorientations; memory loss for the names of close relatives, occupation or his own name; or symptoms of similar severity. To that end, staged ratings are also not applicable as at no point has the Veteran’s disability more nearly approximated the criteria corresponding to a 100 percent rating. See Hart v. Mansfield 21 Vet. App. 505(2007); Fender v. West, 12 Vet. App. 119, (1999). In rendering this determination, the Board acknowledges that on May 2010 VA examination, the Veteran exhibited poor hygiene as reflected by the examiner’s own reports. However, treatment medical records proximate to this examination in April and August do not reflect an inability to maintain hygiene. Moreover, treatment medical records and VA examination reports for the remainder of the appeal note appropriate grooming, appearance, and dress. As such, the Board finds that the Veteran did not manifest an inability to maintain hygiene. Finally, the Board considered the Veteran assertions that his GAF scores warranted a higher rating. However, as indicated in the legal criteria section, his claim for increased rating was certified to the Board after August 2014, and as such, only DSM-V apply. Moreover, because of the Court’s emphatic pronouncement in Golden v. Shulkin, that the GAF scores are methodologically flawed and are particularly unreliable as applied to a psychiatric disorder, in this decision, the Board placed no reliance on GAF scores for rating this Veteran’s MDD. 29 Vet. App. 221 (2018). In sum, entitlement to a 70 percent rating, but no higher, is warranted for the entirety of the period on appeal. 3. Entitlement to a TDIU. VA will grant TDIU when the evidence shows that a veteran is precluded, because of service-connected disability, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Veteran has the following disability ratings: a new 70 percent rating for MDD from September 15, 2004; two 10 percent ratings for left and right ear otitis from March 24, 1998; a 10 percent rating for lumbosacral strain from March 24, 1998 and 20 percent from February 1, 2005, a 20 percent rating for left knee injury from February 19, 2002 and 10 percent from April 29, 2003, a 10 percent rating for pseudofolliculitis barbae from April 20, 2012, two 10 percent ratings for left and right lower extremity radiculopathy from May 9, 2017, and noncompensable ratings for Tietze syndrome from March 24, 1998 and hearing loss of the right ear from May 4, 2001. The Veteran meets the schedular requirements for TDIU. The Veteran asserts that his service-connected disabilities render him totally unemployable. He has a high school degree, and last worked fulltime on August 6, 2005. See VA Form 21-8940. Entitlement to a TDIU is warranted. As indicated above, per VA and private psychologists, the Veteran’s MDD has caused significant anxiety, depression, concentration impairment, interpersonal difficulties, and anger issues throughout the period on appeal. Beyond his psychological impairments, per VA examinations, the Veteran has throughout the appeal, suffered from pain in the spine and knees resulting in decreased range of motion as well as impaired walking, standing, and sitting abilities. The Board finds it likely that such combined impairments would severely preclude sedentary and physical employment since August 6, 2005; the Veteran’s reported last date of fulltime employment. The Board notes that TDIU is being granted based on the Veteran’s collective service-connected disabilities as August 2012 and June 2016 psychological evaluations clarified that the Veteran’s pain and psychiatric symptomatology are essentially inextricably intertwined. Namely, increased pain symptomatology directly impacts his psychological impairments. Given the evidence, the Board finds that realistically the combined effect of the Veteran’s disabilities would preclude obtaining and maintaining substantially gainful employment. Entitlement to TDIU is granted. REASONS FOR REMAND 4. Entitlement to service connection for a neck disability. The Veteran seeks service connection for a neck disability. He asserts that the condition manifested in-service. Alternatively, he asserts the condition is secondarily related to his service-connected lumbar spine and Tietze syndrome disabilities. He was afforded a VA examination in April 2015. The examiner opined against the claim only on a direct basis. A remand is required. Within the history section of the examination report the examiner noted the Veteran’s neck pain began 15 years after service. Such a notation contradicts the Veteran reports of pain since service. Additionally, the examiner did not address contemporaneous records and correspondence that confirm the Veteran sought treatment for cervical spine pain and tenderness in at least as early as January 1996; six and a half years after service. Finally, in February 1996 correspondence, the Veteran raised the contention that his cervical spine conditions were related to his Tietze syndrome. He also submitted a medical treatise which suggested that Tietze syndrome does indeed impact the spine. Given the Veteran’s contentions, the clinical record, submitted treatise, and erroneous information within the April 2015 VA examination a remand is required for new VA examination. While on remand, the examiner must address the question of secondary service connection. 5. Entitlement to service connection for a colon disability, to include ulcerative colitis. The Veteran seeks service connection for a colon disability. He asserts that his condition was either caused or aggravated by his service-connected MDD and/or back pain or the medications used to treat the disabilities. The Veteran was afforded a VA opinion as to his contentions in October 2015. The opinion is inadequate. First, the examiner failed to discuss the aggravation prong of secondary service connection. Second, the examiner used a conclusory statement to support the proposition that secondary service connection was not warranted. In brief, the opined that it would be “mere speculation, and therefore less likely as not (less than 50% probability)” that the Veteran’s bowel condition is secondary to his service-connected conditions or medications. However, in doing so the examiner merely cited to GI reports not supporting the Veteran’s claim with no further discussion of why. Problematically, the examiner did not refer to consideration of psychological and musculoskeletal records or known side-effects associated with the Veteran’s prescribed medications. Of note, a February 2012 VA back examiner indicated that the Veteran was taking motrin 600 mg three times a day consistently, with some upset stomach. The examiner also specified that there were “no other side effects.” Given this omission, a remand is required. 6. Entitlement to an initial evaluation in excess of 10 percent for residuals of a left knee injury prior to February 19, 2002 and in excess of 10 percent from April 29, 2003. 7. Entitlement to an increased rating for service-connected low back disability, currently evaluated as 10 percent disabling prior to February 1, 2005, and as 20 percent disabling thereafter. A remand is warranted. The Veteran was most recently afforded VA examinations in August 2019 for his knee and spine disabilities. At the time of examination, the Veteran was recuperating from an injury to his non-service connected left ankle that required the use of a walking boot. The examiner noted that because of this ankle injury accurate testing of the Veteran’s left knee and spine disabilities could not be completed. Of note, spine ranges of motion could not be obtained, and the left knee range of motion testing was limited due to the Veteran’s fears of reinjuring his ankle. Given the inability of the examiner to obtain accurate testing, a remand for new examination is warranted. In addition, while on remand a new opinion is required to clarify the conflicting evidence of record. The Veteran was afforded VA examinations in April 2015 and May 2017 by separate examiners. In brief, the examinations differed significantly as to the disabilities’ overall severity, functional impairments, ranges of motion, and determinations as to malingering behavior. Specifically, the 2017 examiner found disabilities much more pronounced than the 2015 examiner. In response to these differences, the RO requested the 2017 VA examiner to reconcile the conflicting findings. In June 2017, the May 2017 examiner restated that the findings on May 2017 examination were accurate and the Veteran’s disabilities were moderate in severity. However, in so doing, the examiner relied upon records from 1998 forward. The reliance on said records gives the suggestion that the Veteran’s conditions might have been moderate throughout the appeal. Such a finding appears to run in direct conflict with other VA examiner findings throughout the appeal. Notably, the 2015 VA examiner specifically considered treatment records prior to and from 2005 and determined the Veteran’s disabilities had been mild in severity. That said, the August 2019 VA examiner called into question the accuracy of the findings of the May 2017 examiner. Specifically, disputing the severity of the Veteran’s disabilities and even the general diagnoses made by the May 2017 examiner. As a result of this conflicting evidence, the Board is unable to render a competent determination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). The Board finds it appropriate to have a new VA examiner, who has not previously reviewed the Veteran’s file, opine as to the overall severity and nature of the Veteran’s disabilities throughout the appeal. In so doing, the examiner must specifically review the evidence of record to clarify the severity of the Veteran’s condition throughout the appeal. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any neck disabilities. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion as to whether it is at least likely as not that the Veteran’s neck disabilities disability: (a.) had its onset in service or is otherwise etiologically related to active service. In so doing, the examiner must address the Veteran’s contentions of in-service onset. Note, records from at least as early as, January 1996 document the Veteran reporting and seeking treatment for neck pain and tenderness. (b.) was proximately due to the Veteran’s service-connected lumbar spine and Tietze syndrome disability. (c.) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected lumbar spine and Tietze syndrome disability. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. Note, the Veteran submitted correspondence and treatise evidence in February 1996 asserting secondary service connection, this must be addressed. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any colon disabilities, to include ulcerative colitis. After reviewing the claims file and examining the Veteran, the examiner should provide an opinion as to whether it is at least likely as not that the Veteran’s disabilities: (a.) had its onset in service or is otherwise etiologically related to active service. (b.) was proximately due to the Veteran’s service-connected psychiatric or lumbar spine disabilities, to include the medication used to treat these disabilities. (c.) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected psychiatric and lumbar spine disabilities, to include the medication used to treat these disabilities. The term “incremental increase in disability” means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any “incremental increase in disability” need not be permanent. The examiner must address whether the Veteran’s anxiety worsens his colon conditions. Note, a February 2012 VA examiner indicated that the Veteran was taking motrin 600 mg three times a day consistently, with some upset stomach. The examiner also specified that there were “no other side effects.” Such suggests that his stomach being upset was a side effect of his use of ibuprofen. Note, on April 2015 VA examination, the Veteran reported limiting his use of ibuprofen because it caused gastrointestinal symptoms. Note, May 2015 records document the Veteran not being able to take anti-inflammatories for his knee condition because he had colitis. Any opinion provided must also directly address the Veteran’s contentions and the known side effects of the medication prescribed to the Veteran. 3. Afford the Veteran a VA examination, conducted by a VA examiner other than the 2015, 2017, and 2019 examiners, if possible, to ascertain the current severity of his service-connected lumbar spine and left knee disabilities, in accordance with the applicable worksheet for rating the disorder. (a.) The examiner must test the ranges of motion in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, he or she should clearly explain why that is so. (b.) As for functional loss after repeated use or during flare-ups, if the Veteran endorses experiencing functional loss due to either event, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups or after repeated use. (c.) If the examination is not being conducted during a flare-up or after repeated use over time, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. (d.) If the examiner cannot provide an opinion as to additional loss of motion during a flare-up without resorting to mere speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (e.) Following conducting the above, the examiner should complete a retrospective opinion as to the nature and severity of the Veteran’s conditions throughout the appeal. The relevant period on appeal for the service-connected residuals of a left knee injury for the periods prior to February 19, 2003, and for the period beginning on April 28, 2003 and for the service-connected low back disability for the period before and after February 1, 2005. In rendering this determination, the examiner must address the conflicting examination opinions of record. (Continued on the next page)   Note, the Veteran was afforded VA examinations in April 2015 and May 2017 by separate examiners. In brief, the examinations differed significantly as to overall severity, functional impairments, ranges of motion, and determinations as to malingering behavior. Specifically, the 2017 examiner found disabilities much more pronounced than the 2015 examiner. In response to these differences, the RO requested the 2017 VA examiner reconcile the conflicting findings. In June 2017, the examiner restated that the findings on 2017 examination were accurate and the Veteran’s disabilities were moderate in severity. However, in so doing, the examiner relied upon records from 1998 forward. The reliance on said records gives the suggestion that the Veteran’s conditions might have been moderate throughout the appeal. Such a finding appears to run in direct conflict with other VA examiner findings throughout the appeal. Notably, the 2015 VA examiner specifically considered treatment records prior to and from 2005 and determined the Veteran’s disabilities had been mild in severity. That said, an August 2019 VA examiner called into question the accuracy of the findings of the 2017 examiner. Specifically, disputing the severity of the Veteran’s disabilities and even the general diagnoses made by the 2017 examiner. As a result of this conflicting evidence, the Board is unable to render a competent determination and the examiner is directed to clarifying the record. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. L. Burroughs, 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.