Citation Nr: 21027197 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 15-45 171 DATE: May 4, 2021 ORDER Entitlement to service connection for an acquired psychiatric disorder, to include other specified depressive disorder with anxious distress (depression), is granted. Entitlement to service connection for alcohol use disorder in sustained remission, as secondary to depression, is granted. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbosacral spine is denied. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied. Entitlement to a rating in excess of 10 percent for a left wrist disability is denied. Entitlement to service connection for a functional disability of the left hand, as secondary to a left wrist disability, is granted. REMANDED Entitlement to a rating in excess of 10 percent for a left knee disability prior to January 21, 2020, and in excess of 60 percent from March 1, 2021, is remanded. From March 1, 2021, entitlement to special monthly compensation (SMC) at the housebound rate and/or due to the need for regular aid and attendance is remanded. FINDINGS OF FACT 1. The Veteran's depression had its onset in service. 2. The Veteran's alcohol use disorder in sustained remission is proximately due to his depression. 3. The Veteran's lumbar spine disability is not manifested by ankylosis of the thoracolumbar or entire spine, and there are no impairments of bowel or bladder secondary to the lumbar spine disability. 4. The Veteran's right lower extremity radiculopathy more closely approximates moderate incomplete paralysis of the sciatic nerve, but not moderately severe incomplete paralysis, severe incomplete paralysis, complete paralysis or the sciatic nerve. 5. The Veteran's left lower extremity radiculopathy more closely approximates moderate incomplete paralysis of the sciatic nerve, but not moderately severe incomplete paralysis, severe incomplete paralysis, complete paralysis or the sciatic nerve. 6. The Veteran's left wrist disability is not manifested by ankylosis. 7. The Veteran has a functional impairment of the left hand that is proximately due to his left wrist disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, to include depression, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to service connection for alcohol use disorder in sustained remission, as secondary to depression, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. 3. The criteria for entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbosacral spine are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 4. The criteria for entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, DC 5242, 4.124a, DC 8520. 5. The criteria for entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.71a, DC 5242, 4.124a, DC 8520. 6. The criteria for entitlement to a rating in excess of 10 percent for a left wrist disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.951, 4.3, 4.7, 4.10, 4.71a, DC 5215-5019. 7. The criteria for entitlement to service connection for a functional disability of the left hand, as secondary to a left wrist disability, are met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1979 to December 1986. These matters came before the Board of Veterans' Appeals (Board) on appeal from a November 2013 rating decision of an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In December 2018, the Board granted entitlement to a total disability rating due to individual unemployability (TDIU). That decision was implemented by an August 2019 rating decision. The Board also remanded the matters on appeal, which have returned to the Board. There has been substantial compliance with the December 2018 remand directives. In this regard, the AOJ attempted to secure records from Dr. G, but were unable to do so as he had retired. Additionally, the Veteran was provided adequate examinations of the left wrist and left knee, as directed by the Board. The issues of entitlement to SMC and compensation for a functional impairment of the left hand are part of the increased rating claims on appeal. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019) (explaining that Board must consider secondary service connection and SMC prior to awarding an extraschedular rating when adjudicating an increased rating claim). 1. Entitlement to service connection for an acquired psychiatric disorder, to include depression, is granted. 2. Entitlement to service connection for alcohol use disorder in sustained remission, as secondary to depression, is granted. The Veteran asserts that his depression began during military service and that it is aggravated by his service-connected disabilities. See October 2018 Appellate Brief. The Board agrees. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. Service connection generally requires evidence showing (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Secondary service connection may be granted for a disability that is proximately due to or aggravated by a service-connected disability. 38 C.F.R. § 3.310. The Veteran has a current diagnosis of an acquired psychiatric disorder, which has been diagnosed as a depressive disorder with anxious distress or alternately as separate depressive and anxiety disorders. See June 2015 VA Psychiatric Examination Report; September 2018 Private Psychiatric Examination Report; November 2011 Disability Determination Report. The Veteran's service treatment records (STRs) show a normal psychiatric examination at service entry. Moreover, the STRs show that he was treated at the mental hygiene consultation service for stress. See November 1985 STR. The June 2015 VA examiner opined that the notation of treatment for stress in service does not establish a mental health diagnosis or treatment for a chronic disorder while in the military. Moreover, the examiner opined that the Veteran's depression was less likely than not proximately due to chronic pain from service-connected disabilities. The examiner explained that pain is probably one of several factors contributing to his depression, but the Veteran had many risk factors for depression, and it is less likely than not the reason that he is currently depressed. See June 2015 VA Examination Report. The private September 2018 examiner opined that the Veteran's mental status examination and other evidence of record strongly endorses that the Veteran's acquired psychiatric disorder more likely than not began during military service and continued uninterrupted to the present. Moreover, the examiner explained that it is more likely than not that the Veteran's depression is permanently aggravated by pain from his service-connected back disability, radiculopathy of the lower extremities, residual injuries of the left wrist, left knee, and other service-connected disabilities. See September 2018 Private Examination Report. Here, all the evidence of record supports secondary service connection based on aggravation. Although the VA examiner provided a negative opinion as to whether depression was proximately due to pain, the examiner's opinion shows that pain is likely contributing to depression. Indeed, the VA examiner noted that the Veteran's chronic sleep impairment is less likely than not a separate psychiatric condition and is more likely than not caused by pain and narcotic pain medication. Additionally, the evidence is at least in equipoise as to direct service connection. Neither examiner provided a detailed rationale, which detracts from the probative weight of each opinion. However, the private examiner's opinion includes a detailed narrative as to the circumstances of the Veteran's onset in service, and this narrative is incorporated by reference in the examiner's opinion. In contrast, the VA examination largely focuses on secondary service connection. The private examiner's positive opinion is at least as probative as the VA examiner's negative opinion. As the evidence supports both direct and secondary service connection for depression, the Board will grant direct service connection, as that is more favorable to the Veteran. Additionally, the private examiner opined that the Veteran's alcohol use disorder developed as an irrational coping mechanism for and self-medication of his depression. See September 2018 Private Psychiatric Examination Report. Accordingly, secondary service connection for this disorder is warranted. Increased Rating Claims The criteria for rating musculoskeletal disabilities was amended during the pendency of the appeal, effective February 7, 2021. However, these amendments did not change the criteria applicable to the issues decided below. 3. Entitlement to a rating in excess of 40 percent for degenerative arthritis of the lumbosacral spine is denied. The Veteran argues that he is entitled to a higher rating for his lumbar spine disability. The Veteran is in receipt of a 40 percent rating under DC 5242 (degenerative arthritis of the spine) throughout the appeal. The period on appeal is from December 27, 2012, the date of claim, plus the one-year lookback period. Under DC 5242, a 40 percent rating is warranted where forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or where there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242 (General Rating Formula for Diseases and Injuries of the Spine). The rating schedule provides that objective neurologic abnormalities are rated separately from limitation of motion. See id., Note 1. Additionally, the Veteran may be rated under the Intervertebral Disc Syndrome (IVDS) rating formula, as the Veteran has IVDS. See August 2017 Spine Examination Report. Under the IVDS formula, a maximum schedular 60 percent rating may be awarded where a Veteran has incapacitating episodes of signs and symptoms due to IVDS that require more than 6 weeks of bed rest during the past 12 months. See 38 C.F.R. § 4.71a, DC 5243 (IVDS formula). Here, the Veteran is in receipt of the maximum rating based on limitation of motion. The record shows that he does not have ankylosis of the spine. Thus, a rating in excess of 40 percent must be denied. Additionally, a higher rating is not available under the IVDS formula. The evidence shows that the Veteran did not have any incapacitating episodes requiring bed rest. Moreover, the Veteran's 40 percent rating for his spine, combined with the 20 percent rating for left lower extremity radiculopathy and the 20 percent rating for right lower extremity radiculopathy, is a greater benefit than the maximum 60 percent rating available under the IVDS formula. The Board acknowledges that the November 2014 and August 2017 examiners did not opine as to the additional range of motion loss during flare-ups. However, this error is harmless, as the Veteran is already in receipt of the maximum rating based on limitation of motion. See Johnston v. Brown, 10 Vet. App. 80 (1997). The Board acknowledges that the Veteran has bladder impairment. However, the record shows that this is a residual of his nonservice-connected prostatectomy and is not related to his back disability. See August 2017 Spine Examination Report (no other neurologic abnormalities related to spine). The rating for the Veteran's radiculopathy is addressed below. 4. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy is denied. 5. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy is denied. The Veteran argues he is entitled to a higher rating for radiculopathy of his lower extremities. Throughout the appeal, the Veteran is currently in receipt of a 20 percent rating under DC 8520 (paralysis of the sciatic nerve) for right lower extremity radiculopathy and a 20 percent rating under DC 8520 for left lower extremity radiculopathy. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscle atrophy. A maximum schedular 80 percent rating is warranted for complete paralysis. See 38 C.F.R. § 4.124a, DC 8520. Initially, the Board observes that the Veteran's 40 percent rating for right lower extremity radiculopathy was reduced by a February 2011 rating decision. However, this decision is final, and thus the issue of the propriety of the reduction is not before the Board. In this regard, the November 2011 disability determination was received by the Board in August 2013 based on the date stamp, as the fax line at the top of the document does not show it was sent to the VA. Here, the evidence shows that the Veteran's bilateral radiculopathy more closely approximates moderate incomplete paralysis of the right and left lower extremities. The November 2014 spine examination report does not address the Veteran's radiculopathy and is not probative. The August 2017 examiner completed disability benefits questionnaires (DBQs) focused on the spine (including radiculopathy) and peripheral nerves. The examiner noted radiculopathy manifested by bilateral moderate incomplete paralysis of the sciatic nerve, but not moderately severe incomplete paralysis or severe incomplete paralysis with marked muscle atrophy. The examiner stated that the Veteran's back condition with radiculopathy caused functional loss, as he would have to avoid work that required increased walking, prolonged standing, lifting and carrying of weight, and he would also need to be able to change positions frequently when sitting. Additionally, the examiner noted the Veteran required occasional use of a cane due to lower back condition with bilateral radiculopathy. A 60 percent rating is not warranted, as the evidence does not show marked muscle atrophy. Moreover, the functional limitations noted are consistent with a rating of less than moderately severe, as is occasional use of an assistive device and normal muscle strength. Constant use of an assistive device and decreased muscle strength due to radiculopathy would warrant a rating of moderately severe. The Board acknowledges that the September 2020 Knee examiner noted decreased muscle strength on knee flexion and extension. However, the evidence shows that this is entirely attributable to the knee disability, and thus this evidence is not relevant with respect to the Veteran's radiculopathy. 6. Entitlement to a rating in excess of 10 percent for a left wrist disability is denied. The Veteran argues that he is entitled to a higher rating for his left wrist disability. Throughout the appeal, the Veteran is currently in receipt of a 10 percent rating under DC 5215-5019 (limitation of motion of the wrist rated by analogy to bursitis). This rating has been in place for 20 or more years and is thus protected from reduction. See 38 C.F.R. § 3.951. Bursitis is rated under DC 5019, which provides that bursitis is rated as degenerative arthritis, rated as limitation of motion of the affected parts. Limitation of motion of the wrist is rated under DC 5215. Under DC 5215, a maximum schedular 10 percent rating is warranted where palmar flexion of the major or minor extremity is limited in line with the forearm. A maximum schedular 10 percent rating is alternately warranted where dorsiflexion of the major or minor extremity is less than 15 degrees. Here, the Veteran is already in receipt of the maximum schedular rating based on limitation of motion of the wrist. A higher rating of the wrist requires ankylosis, which is not shown by the evidence of record. Thus, a rating in excess of 10 percent for limitation of motion of the wrist must be denied. However, the Board notes that the examinations of record show functional impairment of the hand related to the wrist disability. Functional impairment of the hand is not contemplated by the rating criteria for limitation of motion of the wrist. Accordingly, impairment of the hand is discussed below. 7. Entitlement to service connection for a functional impairment of the left hand, as secondary to a left wrist disability, is granted. As noted above, functional impairment of the hand is not contemplated by the criteria for rating limitation of motion of the wrist. The Board must consider secondary service connection and other schedular tools in such circumstances. See Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). The August 2017 VA examination report notes that the Veteran is being treated in the hand clinic and has flare-ups two to three times a month of three to four days in duration during which he does not use his hand. Moreover, his wrist disability is productive of functional impairment including holding things in his left hand. See August 2017 VA Wrist Examination Report (Medical History). Although the Veteran does not have a separate hand diagnosis, service connection may be granted for a functional impairment related to military service. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018); Martinez-Bodon v. Wilkie, 32 Vet. App. 393 (2020). Additionally, this functional impairment is similar to the compensable impairments in the rating schedule. See Wait v. Wilkie, 33 Vet. App. 8 (2020). Accordingly, secondary service connection for this functional impairment is warranted. If the Veteran disagrees with the rating or effective date assigned by the AOJ, he should seek review of that decision by filing the appropriate VA form. REASONS FOR REMAND 8. Entitlement to a rating in excess of 10 percent for a left knee disability prior to January 21, 2020, and in excess of 60 percent from March 1, 2021, is remanded. The Board regrets the delay, but additional development is necessary. In this regard, the Veteran underwent a total left knee replacement since the December 2018 remand. Thus, the flare-ups recorded at that examination do not fulfill the reason for the 2018 remand to determine the Veteran's flare-ups of his preoperative left knee disability. On remand, an addendum opinion should be obtained that addresses this issue. 9. From March 1, 2021, entitlement to SMC at the housebound rate and/or due to the need for regular aid and attendance is remanded. The Veteran claimed SMC based on limitations arising from his left knee status post replacement. See February 2020 Housebound Examination. While the AOJ granted SMC over a portion of the appeal, this does not remove the issue from appellate status. On remand, the Veteran should be afforded an examination for housebound status or permanent need for aid and attendance. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following actions: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, secure any outstanding relevant private treatment records. 3. After completing #1 and #2, refer the claims file to an examiner for preparation of an addendum opinion as to the historical severity of his left knee flareups, prior to total replacement. No further examination of the Veteran is necessary unless the examiner deems otherwise. Please provide an opinion describing functional impairment of the Veteran's PRE-OPERATIVE left knee disability due to flare-ups, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment 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. In addressing this question, the examiner should address the Veteran's left knee flare-ups prior to his total left knee replacement. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion. 4. After completing #1 and #2, schedule the Veteran for an examination for housebound status or permanent need for aid and attendance. All findings should be reported in detail. A complete rationale should be given for all opinions and conclusions expressed. In the event the examiner cannot provide an opinion without resorting to speculation, it is essential that the examiner provide a rationale for this conclusion. M.W. KREINDLER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.