Citation Nr: 21025895 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 14-32 674 DATE: April 29, 2021 ORDER Entitlement to a rating of 50 percent, and no higher, for major depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for degenerative disc disease of the lumbar spine is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for left knee arthritis is remanded. Entitlement to service connection for right knee arthritis is remanded. Entitlement to a rating in excess of 10 percent for plantar fasciitis of the left foot is remanded. FINDINGS OF FACT 1. The Veteran’s major depressive disorder is characterized by occupational and social impairment with reduced reliability and productivity due to such symptoms as depressed mood, anxiety, sleep impairment, disturbance of motivation and mood, and memory impairment; the preponderance of the evidence weighs against a finding his major depressive disorder has been manifested by worse impairment. 2. The Veteran’s service-connected disabilities preclude him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 50 percent, and no higher, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.126, 4.130, Diagnostic Code 9434 (2020). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1999 to April 2001 and he received the Army Service Ribbon. INCREASED RATING FOR MAJOR DEPRESSIVE DISORDER The Veteran’s major depressive disorder has been rated as 30 percent disabling under the provisions of 38 C.F.R. § 4.130, DC 9434. Psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned 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 worklike setting); 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 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated that “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.” The Federal Circuit further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. As such, the Board will consider both the Veteran’s specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. Turning to the evidence, the Veteran underwent a VA examination in May 2017. See May 2017 VA Examination, pp. 1-7. At this time, the Veteran endorsed the following symptoms: depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In October 2018, the Veteran submitted an assessment performed by a non-VA clinician. See October 2018 Examination, pp. 1-7. The clinician indicated that the Veteran’s symptoms included depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances; inability to establish and maintain effective relationships; and, persistent delusions or hallucinations. The Veteran further reported a lack of enjoyment in simple activities, impaired concentration and focus, and feeling hopeless about his foot issues. The clinician noted that the Veteran’s speech was normal, his thought content was appropriate, and his organization of thought was goal-directed. Most recently, the Veteran underwent a VA examination in August 2020. See August 2020 VA Examination, pp. 1-5. At this time, the Veteran’s symptoms included depressed mood, anxiety, and chronic sleep impairment. The Veteran exhibited normal speech and logical thought process, and the examiner noted that his short-term recall, long-term recall, attention, concentration, and abstract thinking were all intact. Treatment records show that the Veteran’s most frequent and severe symptoms included sleep impairment, anxiety, disturbance of motivation and mood, depressed mood, and memory impairment. See November 2016 CAPRI, pp. 2, 6, 9, 12, 16, 18, 30, 31, 51, 62, 76, 98, 191, 233, 273, 275; December 2016 CAPRI, pp. 8, 10, 16, 21, 23, 37; January 2019 CAPRI, pp. 10, 12, 23, 70, 101, 116; July 2020 CAPRI, pp. 2-3, 35, 47, 51; September 2020 CAPRI, pp. 3-4. The Veteran occasionally reported impaired concentration and feeling agitated or easily startled. See December 2016 CAPRI, p. 10 The Veteran routinely denied suicidal or homicidal ideation and was observed as exhibiting normal appearance, normal speech and thought process, and adequate insight and judgment. See November 2016 CAPRI, pp. 2, 6, 9, 12, 16, 18, 26, 30, 51, 76, 98, 191, 229, 233, 273, 275; December 2016 CAPRI, pp. 6-8, 10, 14, 16, 19, 21, 27, 29, 37, 47, 52; May 2017 CAPRI, pp. 30, 36, 38, 41, 43; November 2017 Treatment Records, p. 72; January 2019 CAPRI, pp. 12, 23, 45, 52, 65, 70, 77, 101, 116, 157; July 2020 CAPRI, pp. 2, 35, 51; October 2020 CAPRI, pp. 1-4. In a December 2013 statement, the Veteran reported difficulty maintaining relationships, mood swings, panic attacks, night sweats, and impaired long-term and short-term memory. See December 2013 Statement in Support of Claim, p. 1. After careful consideration, the Board finds that the Veteran’s major depressive disorder more closely approximates the picture contemplated by the 50 percent rating. To warrant a higher rating, the evidence must show 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; or symptoms of similar severity. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The evidence does not show that the Veteran’s symptoms have been of the severity, frequency and duration contemplated by the 70 percent rating. Instead, the Veteran’s major depressive disorder is characterized by sleep impairment, anxiety, disturbance of motivation and mood, depressed mood, and memory impairment. These symptoms produce occupational and social impairment with reduced reliability and productivity, and most closely approximate the severity of the symptoms contemplated by a 50 percent rating. Accordingly, a rating of 50 percent, and no higher, is warranted for major depressive disorder. TDIU Total disability ratings for compensation based on individual unemployability (TDIU) may be assigned where the schedular rating is less than total, 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The Veteran meets the schedular rating requirements for a TDIU, see 38 C.F.R. § 4.16(a), as he has multiple service-connected disabilities ratable at 70 percent or more with one disability ratable at 40 percent or more. The remaining (and dispositive) question is whether the Veteran’s service-connected disabilities render him incapable of maintaining a substantially gainful occupation that is consistent with his education and work experience. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Veteran last worked in 2011 and contends that his service-connected disabilities prevent him from securing and following substantially gainful employment. See July 2020 Application for Increased Compensation Based on Unemployability, pp. 1-2. The Veteran’s employment history consists of work as a retail shipping manager and in construction. Turning to the impact of the Veteran’s service-connected disabilities, the Veteran is service connected for major depressive disorder, bilateral plantar fasciitis, painful heel scar, status post tarsal tunnel release of the right foot, and residual scars. As noted above, the Veteran’s major depressive disorder results in occupational and social impairment with reduced reliability and productivity due to sleep impairment, anxiety, disturbance of motivation and mood, depressed mood, and memory impairment. The Veteran’s plantar fasciitis and status post tarsal tunnel release cause pain in the Veteran’s feet that is not relieved with the use of orthotics or surgical intervention, and interference with the Veteran’s ability to run or climb a ladder, walk more than one block, or stand for more than ten minutes. See June 2020 VA Examination, pp. 1-2, 5-6, 11. The Board finds that the impact of these disabilities makes it impossible for the Veteran to secure and maintain substantially gainful employment. The Veteran’s employment history consists of work that has required him to perform work on his feet. The Veteran’s bilateral plantar fasciitis and status post tarsal tunnel release in the right foot produce functional impairments that have interfered with his ability to complete this type of work in the past. Symptoms such as sleep impairment, anxiety, disturbance of motivation and mood, and memory impairment would likely interfere with the Veteran’s ability to perform other work for which he may be qualified, to include work in any sedentary occupational setting. The Veteran has no additional specialized education, training, or other experience that suggests he may be able to secure gainful employment outside of his past work in retail shipping or construction. Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran is unable to maintain a substantially gainful occupation as a result of his service-connected disabilities, and an award of TDIU is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND SERVICE CONNECTION FOR SLEEP APNEA Although the Board regrets the additional delay, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2020). The Veteran’s claim was previously remanded for a nexus opinion with a sufficient rationale. In June 2020, VA obtained a nexus opinion in which the examiner indicated that it less likely than not that the Veteran’s sleep apnea is caused or aggravated by his service-connected bilateral plantar fasciitis and major depressive disorder. See June 2020 VA Examination, pp. 8-9. In support of the opinion, the examiner lists a number of risk factors for sleep apnea and describes the nature of the disability but does not explain why plantar fasciitis and major depressive disorder, to include treatment of these disabilities, do not cause or aggravate the Veteran’s sleep apnea. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Moreover, the examiner does not indicate which risk factors, if any, are present in the Veteran. Accordingly, the Board is unable to rely on the opinion to adjudicate the Veteran’s claim. The Veteran submitted a positive nexus opinion from a non-VA clinician in February 2021. See February 2021 VA Examination, pp. 1-8. Like the November 2015 opinion that was previously found to be inadequate by the Board, the February 2021 opinion largely relies on the existence of a correlative relationship and not a causal one. The clinician also outlines associations between disrupted sleep generally and pain and refers to research that shows that atypical antipsychotics and obesity increase the risk of sleep apnea. However, the evidence of record does not show that the Veteran has been prescribed atypical antipsychotics and it is unclear if the Veteran is obese. Accordingly, the Board finds that the opinion is not adequately supported by the rationale or evidence of record. As there is no adequate nexus opinion of record, the Board remands the claim for new opinion that is accompanied by an adequate rationale. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). SERVICE CONNECTION FOR BILATERAL KNEE ARTHRITIS, BILATERAL HIP CONDITION AND DEGENERATIVE DISC DISEASE OF THE LUMBAR SPINE The Veteran’s service connection claims for back, bilateral knee, and bilateral hip back disabilities were previously remanded by the Board for nexus opinions. In June 2020, a VA examiner offered negative secondary service connection opinions for each of the disabilities. See June 2020 VA Examination, pp. 2-3, 5. The examiner indicated that the Veteran’s back and knee disabilities are consistent with natural aging and that medical literature does not support injury or trauma to one joint causing a disability in a different joint. The examiner attributed the Veteran’s bilateral hip complaints to his nonservice-connected multiple sclerosis. However, the examiner’s opinions fail to consider whether there is any aggravation that results from compensating for the functional or mechanical impairment that results from his service-connected bilateral plantar fasciitis. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the claims are remanded for an opinion on whether the Veteran’s service-connected condition aggravates his bilateral knee, bilateral hip and back disabilities. INCREASED RATING FOR LEFT FOOT PLANTAR FASCIITIS The Veteran’s increased rating claim for left foot plantar fasciitis was previously remanded in May 2018 for an opinion that considers the complete disability picture and offers an overall assessment of the disability’s severity. The Veteran underwent a VA examination in June 2020; however, the examiner did not provide an overall assessment of the disability’s severity (i.e., moderate, moderately severe, or severe). See June 2020 VA Examination, pp. 1-8. The Board finds that there has not been substantial compliance with the May 2018 Board remand and the claim is remanded accordingly. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (finding that a Board remand confers on a claimant the right to compliance with the remand orders). The matters are REMANDED for the following action: 1. Obtain an opinion on the etiology of the Veteran’s sleep apnea. If deemed necessary by the examiner designated to provide the opinion, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s sleep apnea is caused by, aggravated by, or is otherwise etiologically related to a service-connected disability. Separate opinions regarding causation and aggravation as it pertains to each of the Veteran’s service-connected disabilities are REQUIRED. In providing these opinions, the examiner must address whether any pain, symptoms, or medications associated with the Veteran’s service-connected disabilities, including major depressive disorder and bilateral foot disabilities, impact his sleep apnea. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 2. Obtain an opinion on the etiology of the Veteran’s bilateral knee arthritis. If deemed necessary by the examiner designated to provide the opinion, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral knee arthritis is caused by, aggravated by, or is otherwise etiologically related to the Veteran’s service-connected (a) bilateral plantar fasciitis and (b) status post tarsal tunnel release in the right foot. Separate opinions regarding causation and aggravation are REQUIRED. In providing these opinions, the examiner must consider whether the Veteran’s knee disabilities are aggravated as a result of compensating for any functional or mechanical impairments that result from his service-connected foot disabilities. The examiner is advised that the Veteran is competent to report his history and symptoms and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 3. Obtain an opinion on the nature and etiology of the Veteran’s bilateral hip disability. If deemed necessary by the examiner designated to provide the opinion, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s bilateral hip disability is caused by, aggravated by, or is otherwise etiologically related to the Veteran’s service-connected (a) bilateral plantar fasciitis and (b) status post tarsal tunnel release in the right foot. Separate opinions regarding causation and aggravation are required. In providing these opinions, the examiner must consider whether the Veteran’s hip disabilities are aggravated as a result of compensating for any functional or mechanical impairments that result from his service-connected foot disabilities. The examiner is advised that the Veteran is competent to report his history and symptoms and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 4. Obtain an opinion on the nature and etiology of the Veteran’s degenerative disc disease of the lumbar spine. If deemed necessary by the examiner designated to provide the opinion, schedule the Veteran for an examination. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. The examiner should offer comments, an opinion, and a supporting rationale that address whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s degenerative disc disease of the lumbar spine is caused by, aggravated by, or is otherwise etiologically related to the Veteran’s service-connected (a) bilateral plantar fasciitis and (b) status post tarsal tunnel release in the right foot. Separate opinions regarding causation and aggravation are required. In providing these opinions, the examiner must consider whether the Veteran’s back disability is aggravated as a result of compensating for any functional or mechanical impairments that result from his service-connected foot disabilities. The examiner is advised that the Veteran is competent to report his history and symptoms and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A complete rationale for each opinion is required. If the examiner is unable to provide any opinion without resorting to speculation, he or she must explain why this is so. 5. Schedule the Veteran for an examination to ascertain the severity of his left foot plantar fasciitis. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should describe all symptomatology and functional limitations due to the Veteran’s left foot plantar fasciitis and offer an opinion as to whether the level of impairment resulting from his disability is moderate, moderately severe, or severe. In providing the opinion on the severity of the Veteran’s disability, the examiner must explain how he or she arrived at this conclusion and should state whether the Veteran’s disability has worsened, improved, or remained the same since September 2011. The examiner should also note whether the Veteran has undergone or been recommended for surgical intervention for his left foot plantar fasciitis. (CONTINUED ON NEXT PAGE) The examiner is advised that the Veteran is competent to report his history and symptoms and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. J. O’CONNELL Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W.V. Walker, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.