Citation Nr: 21024078 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-00 613 DATE: April 22, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for persistent depressive disorder claimed as adjustment disorder is denied. Entitlement to an earlier effective date prior to May 1, 2014, for the grant of service connection for peroneal sensory neuropathy of the right lower extremity is denied. Entitlement to an effective date prior to May 1, 2014, for the assignment of an increased 20 percent evaluation for status post soft tissue contusion with bony hypertrophy in the talus, restricted ankle and forefoot motion, and post resection of neuroma with hypethesias, dorsum, of the right foot (hereinafter, a service-connected right foot disability) is denied. REMANDED Entitlement to an initial disability in excess of 10 percent prior to October 31, 2011, and in excess of 20 percent thereafter, for painful scars of the right foot is remanded. Entitlement to an initial compensable disability rating for nonlinear scars of the right foot is remanded. Entitlement to an initial compensable disability rating for linear scarring of the right foot is remanded. Entitlement to an initial disability rating in excess of 20 percent for peroneal sensory neuropathy of the right lower extremity is remanded. Entitlement to a disability rating in excess of 20 percent for a service-connected right foot disability is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to an earlier effective date prior to February 16, 2016, for the grant of service connection for persistent depressive disorder claimed as adjustment disorder is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s persistent depressive disorder symptoms have most nearly approximated occupational and social impairment with reduced reliability and productivity, but not with deficiencies in most areas or total occupational and social impairment. 2. The earliest document in the claims file that may be accepted as a claim for entitlement to service connection for peroneal sensory neuropathy of the right lower extremity is a Statement in Support of Claim (VA Form 21-4138) received from the Veteran on May 1, 2014. 3. The record for the one-year period prior to his claim filed on May 1, 2014 does not reflect it was factually ascertainable the Veteran met or nearly approximated the criteria for a 20 percent rating for his service-connected right foot disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 50 percent for persistent depressive disorder claimed as adjustment disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9433. 2. The criteria for entitlement to an effective date prior to May 1, 2014, for the grant of service connection for peroneal sensory neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 5101, 5110, 7104; 38 C.F.R. §§ 3.1 (p), 3.155, 3.400. 3. The criteria for effective date prior to May 1, 2014, for the assignment of an increased 20 percent evaluation for a service-connected right foot disability have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.151, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to September 1983. The claim is on appeal from multiple rating decisions by the Agency of Original Jurisdiction (AOJ). In September 2020, he testified at a Board hearing before the undersigned Veterans Law Judge on the increased rating claims for the right foot scars only. A transcript of the proceeding is in the record. 1. Entitlement to an initial disability rating in excess of 50 percent for persistent depressive disorder claimed as adjustment disorder The Veteran contends that an increased rating is warranted as he experienced severe symptoms. As will be discussed in more detail below, the Board concludes that the overall symptomatology and level of impairment have not more closely approximated the rating criteria for a rating in excess of the currently assigned indicative of a 50 percent rating throughout the appeal period. Therefore, an increased evaluation is not warranted, and the claim is denied. Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board will assign staged ratings for separate periods of time. Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. The Veteran’s persistent depressive disorder is currently evaluated under DC 9433, in accordance with the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under the provisions for rating psychiatric disorders, a 50 percent disability rating requires evidence of the following: 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. A 70 percent disability rating requires: 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 worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9433. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a 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); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. VA had previously adopted the American Psychiatric Association: Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV), for rating purposes. VA implemented DSM-5, effective August 4, 2014, and the Secretary, VA, determined that DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). Effective August 4, 2014, VA also amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated DSM-5. However, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In this case, the relevant medical evidence of record includes VA treatment records, as well as lay statements from the Veteran. In May 2016, the Veteran underwent a VA examination where he was diagnosed with persistent depressive disorder. The examiner summarized the Veteran’s level of occupational and social impairment with respect to all diagnoses as 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 was noted to experience symptoms that included depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The examiner observed that the Veteran was neatly dressed and groomed for his examination. His speech was coherent and goal directed. His thought process was linear and devoid of delusional content. There was no evidence of a thought or perceptual disturbance. The Veteran denied experiencing suicidal or homicidal ideations. He was found to be capable of managing his own financial affairs. In September 2017, the Veteran underwent a second VA examination to evaluate the severity of his disability. The examiner summarized the Veteran’s level of occupational and social impairment with respect to all diagnoses as 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 was noted to experience symptoms that included depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. Upon examination, the Veteran presented as well-groomed and neatly dressed. He was fully oriented to person, place, time, and circumstance. The examiner noted the Veteran was fully engaged during the examination and exhibited good eye contact throughout his assessment. His mood appeared subdued with a flat affect. He spoke clearly with a normal rate and tone. His thought processes were congruent and goal directed. The examiner stated there was no evidence of psychosis, delusions or perceptual disturbances. The Veteran denied experiencing suicidal or homicidal ideations, plans or intent. Overall, his judgment and insight appeared intact. He was found to be capable of managing his own financial affairs. Following a review of the evidence of record, the Board finds that the overall symptomatology and level of impairment of the Veteran’s psychiatric disability has been as contemplated by the 50 percent rating. The criteria for a 70 percent rating have not been met or more closely approximated at any time during the period on appeal. An initial evaluation in excess of 50 percent is not warranted. 38 C.F.R. § 4.7. The record indicates no findings or histories of near-continuous panic attacks at any point during the appeal. The Veteran has consistently denied any homicidal or suicidal ideation. The record also shows that the Veteran is capable of managing his own finances and caring for himself. When considering the Veteran’s symptoms in total, the Board finds that they do not result in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. The Board finds the VA examiner opinions in the record to be particularly probative, as their final assessment of the level of occupational and social impairment took into account the examination of the Veteran, his reported symptoms, and his past medical history. The evidence does not show that the Veteran’s psychiatric symptoms have impaired functioning in most areas of his life. His cognitive abilities (judgment and thinking) are intact. There is no evidence that shows he has lost control over self-care, behavior or responses to emotion. Overall, during the appeal period, the Board finds that the weight of the credible evidence demonstrates that the Veteran’s symptomatology more closely approximates the schedular criteria for the 50 percent disability rating. In sum, the Board finds that an initial evaluation in excess of 50 percent for the Veteran’s service-connected persistent depressive disorder is not warranted for any part of the appeal. Earlier effective date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. The effective date of an award of service connection shall be the day following the date of discharge or release if application is received within one year from such date of discharge or release. Otherwise, the effective date is the date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2)(i). The effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. If the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). Effective March 24, 2015, VA amended its regulations so that all claims, in order to be valid, must be submitted on a form prescribed by the Secretary. 79 Fed. Reg. 57660 (Sept. 25, 2014). However, as the Veteran’s claims at issue in this case were submitted prior to the effective date of the amendment, the regulations governing claims as they existed prior to the amendment will be applied. A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C.A. § 101 (30); 38 C.F.R. § 3.1 (p). Thus, the essential elements for any claim, whether formal or informal, are “(1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing.” Brokowski v. Shinseki, 23 Vet. App. 79 (2009). VA is not required to anticipate a claim for a particular benefit where no intention to raise it was expressed. Brannon v. West, 12 Vet. App. 32 (1998). 2. Entitlement to an earlier effective date prior to May 1, 2014, for the grant of service connection for peroneal sensory neuropathy of the right lower extremity The Veteran seeks an earlier effective date for the award of service connection. Following a review of the pertinent evidence of record, the Board finds that assignment of an earlier effective date is not warranted. The earliest document in the claims file that may be accepted as a claim for entitlement to service connection for peroneal sensory neuropathy of the right lower extremity is a Statement in Support of Claim (VA Form 21-4138) received from the Veteran on May 1, 2014. The Board finds the Veteran is already in receipt of the earliest possible effective date for his neuropathy as the May 1, 2014, effective date assigned is the date the Veteran’s claim for benefits was received. A thorough review of the claims file shows no written communication by either the Veteran or his representative evidencing any intent to seek compensation disability benefits for his now service-connected disability. The claims file does contain VA medical records documenting the Veteran’s neuropathy prior to May 1, 2014. However, the mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a disability. Lalonde v. West, 12 Vet. App. 377 (1999). Similarly, the mere presence of a disability does not establish intent on the part of the Veteran to seek service connection for that condition. Crawford v. Brown, 5 Vet. App. 33 (1995). Therefore, the presence of any treatment records dated before May 1, 2014, cannot serve as the basis for an earlier effective date for the award of service connection. As there is no claim of service connection prior to May 1, 2014, the preponderance of the evidence is against the claim for entitlement to an earlier effective date. 3. Entitlement to an earlier effective date prior to May 1, 2014, for the grant of an increased rating for a service-connected right foot disability The Veteran seeks an effective date earlier than May 1, 2014, for the assignment of an increased 20 percent evaluation for his service-connected right foot disability. For the reasons that follow, the Board finds that an earlier effective date is not warranted, and the claim is denied. In order for entitlement to an increase in disability compensation to arise, the disability must have increased in severity to a degree warranting an increase in compensation. See Hazan v. Gober, 10 Vet. App. 511, 519 (1992). In VAOPGCPREC 12-98, VA’s General Counsel noted that 38 C.F.R. § 3.400 (o)(2) was added to permit payment of increased disability compensation retroactively to the date the evidence establishes the increase in the degree of disability had occurred; that this section was intended to be applied in those instances where the date of increased disablement can be factually ascertained with a degree of certainty. It was noted that this section was not intended to cover situations where disability worsened gradually and imperceptibly over an extended period of time. The Court, in Hazan, noted that 38 U.S.C.A. § 5110 (b)(2) required a review of all the evidence of record (not just evidence not previously considered) as to the disability in order to ascertain the earliest possible effective date. Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim as well as (2) a review of all the evidence of record to determine when an increase in disability was “ascertainable.” Hazan, 10 Vet. App. at 521. The AOJ awarded the Veteran a 20 percent disability rating for his service-connected right foot disability effective the May 1, 2014 date he filed his increased rating claim. The Board finds that the evidence of record weighs against an effective date prior to May 1, 2014 for the assignment of a 20 percent rating. There are no records of treatment prior to the receipt of the Veteran’s claim for increased compensation that would represent an informal claim for increase. Similarly, there is no correspondence from either the Veteran or his then-representative prior to May 1, 2014 expressing an intent to claim an increased rating for this disability upon which an early effective date may be based. The Board finds that there is no evidence of record that demonstrates that it is factually ascertainable that an increase in disability occurred during the year prior to the May 1, 2014 date of the increased rating claim. See 38 C.F.R. § 3.400 (o)(2). Therefore, the earliest date in which the Veteran is entitled to a 20 percent disability evaluation for his right foot disability is May 1, 2014. REASONS FOR REMAND 1. Entitlement to rating in excess of 20 percent for painful scars of the right foot is remanded. 2. Entitlement to a compensable disability rating for nonlinear scars of the right foot is remanded. 3. Entitlement to a compensable disability rating for linear scarring of the right foot is remanded. 4. Entitlement to an initial disability rating in excess of 20 percent for peroneal sensory neuropathy of the right lower extremity is remanded. 5. Entitlement to a disability rating in excess of 20 percent for a service-connected right foot disability is remanded. The Veteran testified at his Board hearing that the symptoms of his service-connected scar disabilities have worsened. He described experiencing a burning sensation emanating from his scars that traveled up to his groin and lower back. He stated that the pain from his scars wakes him up at night and prevent him from having restful sleep. He also stated that the scar disabilities prevent him from tying his right shoe. He was last afforded VA examinations in September 2017 to evaluate the severity of his scars, right foot, and peroneal sensory neuropathy disabilities. He has provided specific, competent, and credible testimony of worsening symptoms of pain and a shooting burning sensation emanating from the site of his right foot scars. Remand is needed to afford him new examinations to evaluate the severity of his respective disabilities. Updated medical findings are needed to determine precisely which of the Veteran’s service-connected disabilities are responsible for his reported symptoms. 6. Entitlement to service connection for a low back disability is remanded. 7. Entitlement to service connection for a left knee disability is remanded. 8. Entitlement to service connection for a right knee disability is remanded. The Veteran contends that he suffers from back and bilateral knee disabilities that are secondary to his service-connected right foot disability. In November 2014, he underwent VA examinations where he was diagnosed with spinal stenosis and bilateral knee arthritis. The examiner’s nexus opinions are inadequate to adjudicate the respective claims. Specifically, with respect to the Veteran’s spinal stenosis, the examiner failed to address the aggravation prong of secondary service connection. He also provided speculative opinions regarding causation for both knee and back disabilities without explaining how he arrived at his conclusions. Remand is needed to obtain more thoroughly reasoned addendum opinions on the etiology of the Veteran’s back and bilateral knee disabilities. 9. Entitlement to an earlier effective date prior to February 16, 2016, for the grant of service connection for persistent depressive disorder claimed as adjustment disorder The Veteran contends that he should be granted an earlier effective date for the award of service connection for his persistent depressive disorder. Service connection was granted in a June 2016 rating decision. In October 2016, the Veteran submitted a Notice of Disagreement (NOD) and disagreed with both the evaluation and effective date of the award. To date, a statement of the case (SOC) has not been issued as it relates to the issue of an earlier effective date. Therefore, the Board is required to remand the claim for issuance of a SOC. Manlicon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from October 2017 to the present. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right foot disability, peroneal sensory neuropathy of the right lower extremity, and three scar disabilities of the right foot. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s respective disabilities under the rating criteria. The examiners should complete the appropriate Disability Benefits Questionnaires (DBQ). The examiner must specifically test and provide range-of-motion findings for the Veteran’s service-connected right foot disability in active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups of each disability. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without 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). 3. Please review the examination report and addendum opinion provided in response to the above remand directives to ensure that they actually comply with the questions stated above. Return any deficient response for corrective action. 4. Obtain addendum opinions from an appropriate clinician on the likely etiology of the Veteran’s diagnosed spinal stenosis and bilateral knee arthritis. Copies of all pertinent records must be made available to the examiner for review. The examiner must answer the following questions: (a.) Is it at least as likely as not that the Veteran’s diagnosed spinal stenosis is (i) caused by the service-connected right foot disability, or; (ii) aggravated by (defined as any increase in disability) the service-connected right foot disability? (b.) Is it at least as likely as not that the Veteran’s diagnosed bilateral knee arthritis is (i) caused by the service-connected right foot disability, or; (ii) aggravated by (defined as any increase in disability) the service-connected right foot disability? 5. Confirm that the VA medical opinions provided comport with this remand, specifically that the standard for the secondary aggravation opinion is any increase in disability, not the standard of beyond the natural progression as noted on the examination form itself. If not, get an addendum. 6. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an earlier effective date prior to February 16, 2016, for the grant of service connection for persistent depressive disorder claimed as adjustment disorder. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.