Citation Nr: 21022867 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 15-13 365 DATE: April 19, 2021 ORDER Entitlement to an initial a 70 percent rating for service-connected adjustment disorder with mixed anxiety and depressed mood is granted. REMANDED Entitlement to an initial rating higher than 10 percent for a right knee osteoarthritis with residual surgical scar is remanded. Entitlement to an initial rating higher than 10 percent for left knee osteoarthritis is remanded. Entitlement to an initial rating higher than 70 percent for adjustment disorder with mixed anxiety and depressed mood is remanded. Entitlement to service connection for a bilateral foot disability, to include pes planus with plantar fasciitis, is remanded. Entitlement to service connection for anemia is remanded. Entitlement to total disability evaluation based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all doubt in the Veteran’s favor, for the entire initial rating period on appeal, the service-connected psychiatric disorder resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW For the entire initial rating period on appeal, the criteria for a 70 percent rating for adjustment disorder with mixed anxiety and depressed mood are approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code (DC) 9440 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1997 to June 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2009 for the bilateral knee disability, a February 2012 for anemia and pes planus with plantar fascitis, and a July 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran served on active duty from September 1997 to June 1999. The file contains a certificate of discharge from the Army Reserve in June 2005. The July 2018 Board decision remanded the issues of entitlement to initial ratings, in excess, of 10 percent disability for left and right knee conditions, individually, along with deferment of TDIU as inextricably intertwined with the bilateral knee disabilities and issue of depression, which had not been perfected at the time of the decision. Additionally, an April 2019 Board decision remanded the issues of anemia and pes planus for an addendum opinion to address whether the Veteran’s anemia and pes planus were aggravated by the Veteran’s service-connected knee disabilities to include the use of medication to treat the Veteran’s service-connected disabilities. The Veteran filed claims for depression and TDIU in December 2014 and the RO denied service connection in February 2015. See December 2014 VA 21-0820, Report of General Information; February 2015 Rating Decision. In April 2015, the Veteran filed a timely NOD and a January 2017 statement of the case (SOC) found service connection for depression remained denied. In the same month, the Veteran filed a timely substantive appeal, and a July 2018 rating decision granted service connection for mixed anxiety and depression with an evaluation of 50 percent effective December 18, 2014. In November 2018, the Veteran filed a second NOD with additional evidence indicating the Veteran’s service-connected mental disability worse than evaluated and an October 2019 SOC, again, denied an initial rating in excess of 50 percent for adjustment disorder with mixed anxiety and depressed mood. See November 2018 NOD. In December 2019, the Veteran filed a timely substantive appeal. Although, additional evidence was submitted by the Veteran in December 2019, the Veteran provided a waiver of consideration of evidence in September 2020. Thus, the Veteran’s initial rating, in excess of 50 percent, for adjustment disorder with mixed anxiety and depressed mood is before the Board. Initial Rating for Adjustment Disorder with Mixed Anxiety and Depressed Mood – Applicable Laws and Regulations Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a claimant is awarded service connection and assigned an initial disability rating, separate disability ratings may be assigned for separate periods of time in accordance with the facts found. Where the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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). Rating Criteria The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. This appeal stems from a February 2015 rating decision that assigned the initial 50 percent rating for the Veteran’s adjustment disorder with mixed anxiety and depressed mood. Under the General Rating Formula, a 30 percent rating is warranted for occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care, and conversation normal) due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id. 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted if the evidence establishes there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as suicidal ideation; obsessional rituals which interfere with routine activities; 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, 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). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the Court in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is 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; however, the Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. Rating Analysis For the reasons expressed below, the Board finds that According to September 2014 VA treatment records, during a depression screen, the Veteran answered “not at all” to the question whether he had little interest or pleasure in doing things and indicated that he felt down, depressed, or hopeless several days. A review of systems a few days later noted that the Veteran denied having any depression or anxiety. In November 2014, a psychiatry consult noted that the Veteran was referred due to recurrent episodes of depression and anxiety. The Veteran complained that he was depressed, felt like he had no energy, and did not feel like doing anything. The mental health professional noted that the Veteran denied any symptoms of more pervasive melancholia, mania, or psychosis. He also denied having suicidal or homicidal thoughts. In support of his claim, the Veteran submitted a June 2016 private disability benefits questionnaire, in which the psychologist rendered a diagnosis of depressive disorder due to another medical condition with depressed features. In terms of social impairment, the psychologist noted that the Veteran was never married but had one school-aged child. He denied having any significant relationships and lived with his mother. He kept his struggles to himself and did not want to burden others. He was socially isolated and withdrawn. In terms of occupational impairment, the psychologist noted that the Veteran was a high school graduate and earned some college credits through his job. His longest and last job was a prison corrections officer for ten years until 2012. The psychologist identified psychiatric symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near continuous depression affecting the ability to function independently, appropriately, and effectively; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances including work or a worklike setting; neglect of personal appearance and hygiene; and, intermittent inability to perform activities of daily living. On mental status examination, the psychologist noted that the Veteran reported that he could no longer enjoy the simplest of activities. Attention and concentration appeared variable and the Veteran complained of increased trouble with short-term memory. Speech was normal but the Veteran was “brief with information offered.” There was no evidence of hallucinations. The Veteran was anxious and nervous and reported feeling anxious and depressed. The psychologist concluded that the Veteran’s psychiatric disorder resulted in occupational and social impairment with deficiencies in most areas. According to September 2016 VA treatment records, the Veteran described persistent and variable symptoms of anxiety and depression. During this visit the Veteran also described having chronic sleep impairment and panic attacks. In June 2018, the Veteran underwent a mental disorders compensation examination, at which time the examiner rendered a diagnosis of adjustment disorder with mixed anxiety and depressed mood secondary top the Veteran’s pain, which affected his mood and anxiety. In terms of social impairment, the examiner noted that the Veteran had distant relationship with his siblings and that he had joint custody over his 9-year-old daughter who lived with him. In terms of occupational impairment, the examiner noted the Veteran’s reports that he lost his last job as a correctional officer because of taking prescriptions for opioids and having light duty issues because of pain. The examiner identified psychiatric symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; fluctuating appetite; guilt; fatigue; poor concentration; irritability/anger; feeling of hopelessness and worthlessness; social isolation due to irritability; anhedonia; and, decreased motivation. On mental status examination, the examiner noted that the Veteran appeared to be tense and acknowledged having depression. Affect was irritable and depressed and thought process was goal directed. No psychotic symptoms were observed or reported. Speech was within normal limits. Concentration and attention were good. The Veteran was fully oriented. He endorsed some memory problems but during the examination memory was intact. Insight and judgment appeared good. The examiner concluded that the psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. Following a review of all the evidence and resolving any reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating is warranted for the entire initial rating period on appeal. Importantly, the evidence of record documents that the Veteran’s psychiatric disorder resulted in difficulty in adapting to stressful circumstances, including work or a worklike setting and well as inability to establish and maintain effective relationships due to social isolation, anger, and irritability, which are contemplated by the criteria for a 70 percent rating. In this regard, the Board notes that the 2018 examiner concluded that the psychiatric disorder resulted in only reduced reliability and productivity, which warrants a 50 percent rating; however, the examiner failed to identify any meaningful relationships the Veteran had and agreed that he suffered from social isolation and withdrawal. In terms of occupational impairment, the Board specifically considered evidence suggestive that the Veteran’s psychiatric symptoms have some impact his ability to work, nevertheless, as the majority of evidence suggests that the inability to work was due to the service-connected bilateral knee disability, the issue of entitlement to a TDIU will be decided at a later time. In summary, affording the Veteran the benefit of the doubt, the Board finds that a 70 percent disability rating is warranted for the Veteran’s psychiatric disorder for the entire initial rating period. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND A remand is necessary to provide the Veteran with adequate VA examinations for the service-connected bilateral knee disability, to obtain adequate addendum medical opinions for the remanded service connection claims, and to readjudicate the issue of entitlement to a TDIU and increased rating for the service-connected psychiatric disorder. Increased Rating for Bilateral Knee Disability Pursuant to the July 2018 Board remand, the Veteran underwent a bilateral knee examination in November 2019, at which time the initial range of motion showed right knee flexion to 50 degrees and normal extension and left knee flexion to 50 degrees and normal extension. The examiner indicated that the examination reported was medically consistent with the Veteran’s statements describing functional loss after repeated use over time/during flare-ups despite not being conducted under such conditions. Nevertheless, when asked to estimate additional range of motion loss under such conditions, the examiner copied and pasted the same results as those recorded upon physical examination. In the remarks portion of the examination, the examiner indicated that flexion was “0-10” and extension “10-0” on active and passive weight bearing motion. The Board is unclear if such is an accurate reflection of the Veteran’s range of motion. Accordingly, a new VA examination is necessary. Service Connection for Bilateral Foot Disability, to Include Pes Planus with Plantar Fasciitis The Board finds that there has not been substantial compliance with the April 2019 Board’s remand directives. The December 2019 VA examiner’s opinion finds the Veteran’s pes planus did not exist prior to induction to service. The December 2019 examiner indicated the Veteran’s 1995 entrance exam noted mild pes planus while the 1997 enlistment exam reflects normal arches, thus the Veteran’s foot disability was not considered a pre-existing injury which is contradictory to the March 2011 examiner’s opinion. Moreover, the April 2011 and December 2019 examiners indicated (STRs) showed no complaints of foot pain which is also contradictory to the March 1999 assessment of PFS (patellofemoral syndrome) secondary to pes planus. See March 1999 STR, Chronological Record of Medical Care. To the extent that the 2019 examiner misstated the Veteran’s medical history, the opinion is of no probative value. See Reonal v. Brown, 5 Vet. App. 458 (1993). Entitlement to service connection for a blood disorder, to include anemia, is remanded. In April 2019, the Board remanded for VA examination to determine whether the Veteran’s service-connected bilateral knee disabilities, to include medications used for treatment of the disability, or any other service-connected disabilities caused or aggravated the Veteran’s blood disorder, anemia. While the December 2019 VA examiner provided a negative opinion regarding causation and aggravation, the examiner failed to even mention any medications taken for treatment of the service-connected disabilities and opine whether those caused and/or aggravated the Veteran’s anemia. TDIU The Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, the Veteran filed claims for a TDIU in 2012 and 2014, in which he indicated that he was unable to obtain substantial gainful occupation due to his service-connected bilateral knee disability. Given that the Board remands these issues herein, it will defer its decision regarding entitlement to a TDIU as inextricably intertwined with the issues being remanded. Rating Higher than 70 percent for the Acquired Psychiatric Disorder Because the Board is remanding herein the issue of entitlement to a TDIU, which includes determination regarding the effects of the Veteran’s service-connected disabilities on his ability to work, entitlement to a disability rating higher than 70 percent for the service-connected adjustment disorder, which contemplates, in part, total occupational impairment, must also be remanded as it is inextricably intertwined. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Thereafter, provide the Veteran with a VA examination to help identify the current severity of the right and left knee disabilities. The claims file must be made available to and be reviewed by the examiner. All indicated studies, tests, and evaluations must be conducted, and all findings reported in detail. After a thorough review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Elicit from the Veteran all signs and symptoms of the right and left knee disabilities throughout the pendency of the appeal from September 2008, forward. In doing so, obtain information from the Veteran (and the treatment records) as to the frequency, duration, characteristics, severity, or functional loss with any repetitive use or during any flare-ups. (b) Full range of motion testing must be performed where possible. The joint in question and the paired joint should be tested in (1) active motion, (2) passive motion, (3) in weight-bearing, and (4) in nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If pain is found during the examination, the examiner should note when the pain begins. (c) In assessing functional loss, flare-ups and increased functional loss on repetitive use must be considered. The examiner must consider all procurable and ascertainable data and describe the extent of any pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report functional impairment due to such factors in terms of additional degrees of limitation of motion. **If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician’s Guide to estimate, “per [the] veteran,” what extent, if any, flare-ups affect functional impairment. The examiner must include a discussion of any specific facts that cannot be determined if unable to opine without speculation. A complete rationale should be provided for all opinions. 3. Obtain another medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran’s bilateral foot disability. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After review of the record, the examiner is asked to respond to the following: (a) Identify all diagnosed foot disabilities since April 2009. If the examiner does not diagnose any foot disability, to include pes planus or plantar fascitis, please reconcile and discuss the April 2011 and December 2019 examiners’ diagnoses and the March 2011 and December 2015 radiology reports, and explain how any diagnosed disability resolved or no longer show any pathology. (b) For each foot disability, to include pes planus with plantar fasciitis, so diagnosed, please address the following: a. Is there clear and unmistakable evidence that such disability preexisted active duty service? In doing so, please discuss both the May 1995 and June 1997 induction examinations. b. If a foot disability is determined to have pre-existed the Veteran’s service, is there clear and unmistakable evidence that the pre-existing disability WAS NOT aggravated (worsened beyond natural progression) during that period from September 1997 to June 1999. In doing so, please address why or why not, discuss and address the STR notation on the March 1999 assessment of PFS (patellofemoral syndrome) secondary to pes planus (see March 1999 STR, Chronological Record of Medical Care). (c) For any currently diagnosed foot disability, opine as to whether it is at least as likely as not (a 50 percent or greater probability) that it had its onset during service or is otherwise related to it. (d) For any currently diagnosed foot disability, opine as to whether it is at least as likely as not (50 percent or greater probability) that it was caused OR aggravated by a service-connected disability. A complete rationale should be provided for all opinions on direct, causation, AND aggravation. In doing so, please address: (1) the Veteran’s statement that he developed foot pain in the soles of his feet while in boot camp (see December 2019 VA Foot Conditions DBQ); (2) the Veteran’s statement he was provided orthotics and foam inserts for treatment (Id.); (3) the Veteran describes symptoms of sharp pain and burning in the soles of his feet (Id.); (4) the Veteran informed that his fallen arches began in 1998 due to his shifting of weight from side to side to compensate for his knee conditions (see April 2011 VA General Examination); (5) the Veteran reported bilateral symptoms of foot pain that traveled to big toes and ankles (Id.); (6) the April 2011 and December 2019 examiner’s discussion of the Veteran’s entrance exams; and (7) the STR notation on the March 1999 assessment of PFS (patellofemoral syndrome) secondary to pes planus (see March 1999 STR, Chronological Record of Medical Care) 4. Obtain another medical opinion from an appropriate VA examiner to help determine the likely etiology of the Veteran’s anemia. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. After a review of the record, the examiner is asked to respond to the following: Is it at least as likely as not (a 50 percent or greater probability) that the diagnosed anemia was caused OR aggravated by medications used for treatment of a service-connected disability? A complete rationale should be provided for all opinions on both causation AND aggravation. In doing so, please address: In addressing these questions, please discuss: (1) the use of medication to include Vitamin D3, hydrocodone, ibuprofen, lisinopril, Vitamin D2, glipizide, cephalexin, promethazine, tramadol, diclofenac, trazodone, duloxetine, meloxicam (see December 2011, February 2018, August 2019 VA Primary Care Attending Notes; November 2014 VA Podiatry Clinic Note; March 2015, December 2016 VA Psychiatry Attending Notes); (2) the Veteran’s iron profile (see November 2010 VA Primary Care Letter); (3) Dr. I.A.’s treatment for anemia (see November 2010 VA Primary Care Attending Note); and (4) the Veteran’s December 1998 Blood Analysis, June 2009 and March 2012 Lab Results, and September 2017 Iron Profile (see December 1998 STRs, Blood Analysis; June 2009 VA Lab Results; March 2012, September 2017 VA Primary Care Letters). 5. Thereafter, readjudicate the remanded claims. A. Yaffe Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Victoria L. Stephens 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.