Citation Nr: 21020863 Decision Date: 04/08/21 Archive Date: 04/08/21 DOCKET NO. 19-24 098 DATE: April 8, 2021 ORDER Entitlement to service connection for the Veteran’s Bell’s palsy is granted. Entitlement to service connection for the Veteran’s headaches is granted. Entitlement to an effective date earlier than February 16, 2016, for the grant of service connection for major depression with generalized anxiety disorder is denied. Entitlement to an initial 70 percent rating for the Veteran’s major depression with generalized anxiety disorder is granted. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. REMANDED Entitlement to service connection for the Veteran’s keratosis of lower abdomen is remanded. Entitlement to service connection for the Veterans right buttock skin condition is remanded. FINDINGS OF FACT 1. The Veteran’s Bell’s palsy is proximately due to his service-connected facial scars. 2. The Veteran’s headache disability is proximately due to his service-connected facial scars. 3. The Veteran filed a service connection claim for his depression that was denied by a March 2006 rating decision. The Veteran did not appeal that decision. 4. The Veteran’s petition to reopen his depression service connection claim was received on February 16, 2016. 5. The Veteran was granted service connection for major depression with generalized anxiety disorder in a January 2018 rating decision, effective February 16, 2016. 6. The Veteran’s major depression with generalized anxiety disorder manifests as occupational and social impairment with deficiencies in most areas, such as work, judgment, thinking or mood. 7. The Veteran’s service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for service connection for the Veteran’s Bell’s palsy have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310, (2020). 2. The criteria for service connection for the Veteran’s headache disability have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310, (2020). 3. The March 2006 rating decision that denied service connection for depression is final. 38 U.S.C. § 7104 (2018); 38 C.F.R. §§ 20.1100, 20.1104 (2020). 4. The criteria for an effective date earlier than February 16, 2016, for the grant of service connection for major depression with generalized anxiety disorder have not been met. 38 U.S.C. §§ 5110, 5111 (2018); 38 C.F.R. §§ 3.4(b)(1), 3.151, 3.155, 3.400 (2020). 5. The criteria for an initial 70 percent disability rating for the Veteran’s major depression with generalized anxiety disorder have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9434 (2020). 6. The criteria for a TDIU have been met. 38 U.S.C. §§ 1110, 5107 (2018); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from October 1951 to February 1954. The Veteran initially testified before a Veterans Law Judge (VLJ) in April 2018 and a transcript is of record. In October 2018, the Board remanded the case to the Agency of Original Jurisdiction (AOJ) for the Veteran to receive a VA examination for his Bell’s palsy. Additionally, the case was remanded so the AOJ could issue a statement of the case (SOC) for the rest of the Veteran’s claims. The Veteran’s TDIU claimed was inextricably intertwined with the other claims. The Veteran received a new VA examination for his Bell’s palsy claim in September 2019 and in July 2019 an SOC was issued that addressed the Veteran’s claims. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Veteran subsequently appealed those claims, and in June 2020, the Veteran testified before the undersigned VLJ and a transcript is of record. After the hearing, the Veteran’s attorney submitted multiple private opinions. The Veteran’s attorney initially argued about the qualifications of the VA examiner and the negative nexus opinion concerning the Veteran’s Bell’s palsy service connection claim. In a May 2020 correspondence, the Veteran requested the curriculum vitae (CV) of the VA examiner, and in a February 2021 correspondence, addressed the qualifications of the examiner who conducted the Veteran’s psychiatric VA examination. The VA psychiatric examiner’s CV was not sent. However, the private opinions submitted by the Veteran were sufficient to support grants of the Veteran’s claims. The Veteran’s attorney also requested a copy of the hearing transcript and due to administrative error, one was not sent. As the Board is granting service connection for Bell’s palsy and headaches, granting an initial 70 percent rating for major depression with generalized anxiety disorder, and granting a TDIU, there is no prejudice to the Veteran. This case is advanced on the docket due to the Veteran’s age, and proceeding with these grants of benefits in an expedient manner is the most favorable action to take. With respect to the earlier effective date claim, no testimony was provided at the hearing for this issue, and therefore there is no prejudice to the Veteran. Neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. To establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303 (2020); see also Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disability or injury. 38 C.F.R. § 3.310(a) (2020). Secondary service connection may also be established for a nonservice-connected disability which is aggravated by a service-connected disability. In such an instance, the Veteran may be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(a) (2020); Allen v. Brown, 7 Vet. App. 439, 448 (1995). To establish entitlement to service connection on this secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a “competent” source. Second, the Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). Third, the Board must weigh the probative value of the evidence in light of the entirety of the record. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102 (2020). When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 4 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Bell’s Palsy The Veteran’s medical records document his multiple complaints for left side facial pain and numbness. He was hospitalized for left side facial numbness and was noted as having moderate, severe left sided facial droop. Additionally, he noted that he had a nervous tick and skin problems in service that have continued. He received VA examinations in November 2015 and November 2016. They both noted that the Veteran had left side neuralgia since 1952 after a cyst removal. The examiners noted his Bell’s palsy diagnosis, but they opined that it completely resolved and was not related to his service-connected facial scar. The Veteran also submitted a private opinion from August 2018. The examiner opined that the Veteran’s Bell’s palsy is related to his service-connected facial scar. The examiner opined that his condition resulted from his in-service surgery for his facial legion. Conversely, in a September 2019 VA opinion, the examiner concluded there was no relation to his service-connected condition. The examiner noted that the Veteran’s condition only impacted the left side, not his entire face. Additionally, his symptoms would have shown immediately after his cyst excision and not 50 years later. The examiner noted that the Veteran’s facial nerve paralysis was not aggravated by his service-connected scar neuralgia because his condition is well controlled with medication. Furthermore, the examiner noted that the current examination showed more issue with right side facial nerve palsy and the left side was almost resolved. The Board finds the August 2018 private examiner’s opinion provided competent, credible evidence in the Veteran’s favor. The VA examiners failed to consider the Veteran’s report that he has had left side facial paralysis since service. The VA examiners consistently noted the length of time from his service to diagnosis without acknowledging his lay statements. Accordingly, the Board affords higher probative value to the August 2018 private opinion and finds that service connection is warranted for Bell’s palsy. 2. Headaches Service connection for a headache disability is warranted. The Veteran testified at his June 2020 Board hearing that his headaches were caused by his Bell’s palsy and facial scars. In a November 2020 private opinion, Dr. M. F. concluded that his in-service surgery caused scarring and pain in his facial area. The pain in this area manifested as cluster headaches due to trigeminal neuralgia. The examiner noted that the main cause of trigeminal neuralgia was blood vessels pressing on the root of the trigeminal nerve which might occur after surgery. Thus, the Veteran’s cluster headaches are related to this trigeminal neuralgia which developed after his facial surgery. The Board finds the private examiner provided a credible, competent positive nexus opinion in favor of the Veteran’s claim. As there is no probative evidence against the Veteran’s claim, service connection for a headache disability is warranted. Earlier Effective Date In March 2006, the RO denied the Veteran’s service connection claim for major depression. The RO acknowledged the Veteran’s diagnosis but found it was caused by a non-service-connected disability and there was no in-service incident to provide a nexus. Thus, his claim was denied. The Veteran did not submit an NOD or new and material evidence within one year of its promulgation. See Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). Accordingly, the March 2006 rating decision became final. 38 U.S.C. § 7105 (2018); 38 C.F.R. §§ 3.104, 3.160(d), 19.20, 20.302, 20.1103 (2020). In February 2016, the Veteran filed to reopen his depression service connection claim. He had received VA treatment for his psychiatric condition within one year of the March 2006 decision. However, in an April 2016 rating decision that specifically considered his VA treatment records from March 2, 2006 through April 8, 2016, the RO found that new and material evidence had not been submitted and denied his claim. He filed an NOD in May 2016. In a January 2018 rating decision, the RO reopened the Veteran’s claim and granted service connection for his depression effective February 16, 2016, the date his petition to reopen the previously denied claim was received. In February 2018, the Veteran filed a Notice of Disagreement (NOD) requesting an increased rating for his depression and an earlier effective date. The Veteran perfected his appeal because he filed a timely NOD with the rating decision that established the effective date for his disability. Accordingly, the Board properly has jurisdiction over this effective date issue. See Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006) (there is no such thing as a freestanding claim for an earlier effective date). Except as otherwise provided, the effective date for a grant of compensation will be the day following separation from active service or the date entitlement arose, if a claim is received within one year of separation. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Otherwise, the effective date of the award of an evaluation based on an original claim, a claim reopened after a final disallowance, or a claim for an increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. Id. The effective date for the grant of service connection following a final decision is the date of the reopened claim. See Sears v. Principi, 16 Vet. App. 244, 248 (2002) (“the Court thus holds that the effective date statute, 38 U.S.C. § 5110(a), is clear on its face with respect to granting an effective date for an award of VA periodic monthly benefits no earlier than the date that the claim for reopening was filed”); aff’d Sears v. Principi 349 F.3d 1326 (2003). The Veteran has not asserted, and the record does not show, that he filed a petition to reopen his previously denied claim after the March 2006 but before February 16, 2016. Here, the Veteran’s claim of service connection was reopened and granted on the date of his application to reopen. Even if there was evidence entitlement arose prior to that date, the proper effective date would be the date of application as that date is the later date. Accordingly, the correct effective date for the grant of service connection for his depression is February 16, 2016, the date of his application to reopen his claim. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.1, 4.20 (2020). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2020). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2020). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection for his depression in February 2016. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s depression is evaluated under Diagnostic Code 9434. 38 C.F.R. § 4.130 (2020). Depression is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130 (2020). Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned 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 (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. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. 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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130 (2018). Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran’s VA records document his mental health treatment. The Veteran continuously reported issues with depression and anxiety. His earliest VA records noted no evidence of suicidal ideation or delusion/thought disorder. At his Board hearing, however, he testified about his suicidal ideation. In December 2017, he received a VA examination. The examiner noted that his disability caused excess worry, depressed mood, and suicidal ideation. He reported having suicidal thoughts about once a month but could fight them off. He was not experiencing any suicidal thoughts or ideations at the examination. He spends most of this time taking care of his rental property, was friendly with his neighbors, and saw his extended family around the holidays. He also experienced panic attacks that occurred weekly or less often, mild memory loss, and disturbances of motivation and mood. The examiner opined that his disability caused occupational and social impairment with occasional decreases in work efficiency with intermittent periods of inability to perform tasks. In December 2020, the Veteran was evaluated by a private doctor. The Veteran reported that his mood was down and numb. He experienced chronic sleep impairment and reduced appetite. He continued to experience recurrent suicidal ideation and preoccupation with his own morbidity. He had difficulty concentration and was restless and irritable. He also had a lot of anxiety around his physical appearance; the examiner noted that the Veteran had an intense preoccupation with his appearance. The examiner also noted that the Veteran endorsed symptoms consistent with psychosis and thought disorder, including a history of auditory and visual hallucinations. The examiner concluded that the Veteran’s psychiatric conditions rendered him 100 percent disabled. The Board finds an increase in the Veteran’s initial PTSD disability rating to 70 percent is warranted. The record shows the Veteran’s consistent complaints of depression, anxiety, and intense preoccupation with his appearance. The Veteran reported symptoms of irritability, panic attacks, sleep impairment, and hallucinations. The Board notes that the Veteran maintained contact with his family and reported that he was friendly with his neighbors; though the December 2020 private examiner noted that the Veteran reported being isolated in part due to the coronavirus. Moreover, the Veteran reported having thoughts about self-harm, and suicidal ideation, which is contemplated by the 70 percent criteria. Accordingly, the Board finds the preponderance of the evidence is for the Veteran’s claim and an increase to 70 percent is granted. A 100 percent rating is not warranted because total social impairment is not shown. The Veteran reported that his relationship with his wife is good and he continues to speak with his daughter. He also reported being friendly with his neighbors and seeing his extended family at holidays. The evidence does not show that he is completely socially isolated to the extent required for a 100 percent disability rating. Further, the evidence fails to show the Veteran’s passive suicidal ideation resulted in any suicidal intentions or plans. Though, the Board acknowledges that self harm is contemplated by the 100 percent criteria, the Veteran’s passive thoughts are not of the frequency, severity, or duration such that they cause or contribute to total social impairment, and the record does not show that he is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). The medical and lay evidence of record does not show this level of social impairment. The 100 percent criteria are not more closely approximated. 38 C.F.R. § 4.7, 4.130 (2020). TDIU A TDIU rating may be assigned, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who do not meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of the Compensation Service for extraschedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors must be considered. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. After service the Veteran worked in the dry-cleaning business for about 50 years. He testified at his June 2020 Board hearing that he was unable to work because he could no longer stand all day due to his service-connected tinea pedis. He testified that he needed special shoes because of his disability and has painful scars from surgery. Additionally, his depression interfered with his ability to work because it caused him to have low energy. The Board also acknowledges the conflicting medical evidence of record concerning his unemployability. In a June 2014 VA opinion, the examiner concluded that the Veteran’s service connected disabilities did not render him unemployable. The Veteran also submitted medical evidence and lay statements finding that he was unemployable; however, his non-service-connected disabilities were considered. Consequently, in a December 2020 opinion, the private examiner concluded that the Veteran was unemployable solely based on his psychiatric condition. Consequently, the Board finds there is an equal balance of positive and negative evidence. While the Board acknowledges that the Veteran may be able to engage in some sedentary work that does not require prolonged standing the Board must also consider his employment history, educational and vocational attainment. See 38 C.F.R. § 4.16(b). Furthermore, the Board finds the December 2020 private opinion provides probative evidence that his psychiatric condition would also interfere with his ability to work in a sedentary-office type job. Accordingly, as the evidence is in relative equipoise, the Veteran’s claim prevails. 38 C.F.R. § 4.3 (2020). Thus, the Board finds entitlement to a TDIU is warranted. REASONS FOR REMAND The Veteran testified at his Board hearing that his lower abdomen keratosis and right buttocks scar were caused by his in-service skin problems. He not received a VA examination and the Board finds an examination is necessary to determine the etiology of his disabilities and any possible connection to service or a service-connected condition. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination with an appropriate clinician for his lower abdomen keratosis. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a.) Whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s lower abdomen keratosis began during active service or is related to an incident of service. b.) Whether it is at least as likely as not the Veteran’s lower abdomen keratosis was proximately due to or the result of his service connected facial scars or dermatophytosis. c.) Whether it is at least as likely as not that the Veteran’s lower abdomen keratosis was aggravated beyond its natural progression by his service connected facial scars or dermatophytosis. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Schedule the Veteran for an examination with an appropriate clinician for his right buttocks skin condition. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must opine as to the following: a.) Whether it is at least as likely as not the Veteran’s right buttocks skin condition began during active service or is related to an incident of service. b.) Whether it is at least as likely as not the Veteran’s right buttocks skin condition was proximately due to or the result of his service connected facial scars or dermatophytosis. c.) Whether it is at least as likely as not that the Veteran’s right buttocks skin condition was aggravated beyond its natural progression by his service connected facial scars or dermatophytosis. The examiner must provide all findings, along with a complete rationale for his or her opinion(s) in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 3. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Brunot, 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.