Citation Nr: 21031526 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 18-49 275 DATE: May 24, 2021 ORDER Entitlement to an 70 percent rating for mixed anxiety depressive disorder is granted. REMANDED Entitlement to service connection for a left hip condition, to include as secondary to degenerative arthritis of the spine, is remanded. Entitlement to service connection for a right hip condition, to include as secondary to degenerative arthritis of the spine, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 3, 2019, is remanded. FINDING OF FACT For the entire period on appeal, the Veteran's acquired psychiatric disorder is characterized by occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for an acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1972 to January 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2017 and March 2018 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned at a hearing in February 2020. Due to technical difficulties, a copy of the hearing transcript is unavailable and is not associated with the claims file. In February 2021, VA advised the Veteran that the transcript of the hearing is unavailable and offered the Veteran an additional hearing. In April 2021, the Veteran declined another Board hearing. In a January 2020 decision, the RO granted entitlement to a TDIU, effective October 3, 2019. Aside from the Veteran initiating an appeal of the TDIU issue, a TDIU claim is a part of an increased rating issue when such claim is raised by the Veteran or reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the record indicates that the Veteran was unemployed prior to October 3, 2019 and the increased initial rating claim on appeal was received prior to that date, the Board finds that the issue of entitlement to a TDIU prior to October 3, 2019 remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018). REFERRED As noted above, the hearing transcript is unavailable. However, the hearing notes from the undersigned indicate that the Veteran wished to pursue an earlier effective date for his mixed anxiety depressive disorder. This issue of an earlier effective date for the grant of service connection for the psychiatric disability is referred to the Agency of Original Jurisdiction (AOJ) for adjudication. 1. Entitlement to an initial rating in excess of 50 percent for mixed anxiety depressive disorder Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran is in a receipt of a 50 percent initial disability rating for an acquired psychiatric disorder, effective February 2, 2018. He contends that his symptoms warrant a higher rating for the entire period on appeal. The Veteran's acquired psychiatric disorder is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9410. Under such formula, a 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 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; or memory loss for names of close relatives, own occupation or own name. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. VA provided the Veteran an examination in December 2019 to determine the nature and severity of his service-connected mixed anxiety depressive disorder. The Veteran reported crying spells; endorsed feelings of worthlessness and hopelessness; decreased motivation and decreased participation in activities. He reported excessive worrying about everyday occurrences and world events. He reported daily panic attacks, especially at night, which involve increased heart rate and stomach pain. He endorsed psychomotor retardation and agitation. He reported irritability with verbal and physical outbursts, poor memory, and decreased concentration. He reported some difficulty handling stress; mild neglect of hygiene; difficulty adapting to stressful circumstances, including at work; and difficulty establishing and maintaining effective work and social relationship. He reported some spatial and time disorientation and noted that sometimes he gets turned around when driving. He acknowledged suicidal ideations but denied a plan or intent. In a March 2018 VA examination, the Veteran reported depressed mood, anxiety, panic attacks, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, and difficulty establishing and maintaining effective relationships. He reported he does not enjoy his previous hobbies and experiences frustration and irritability. The Veteran did not report suicidal ideations or hallucinations at this examination. The examiner reported the Veteran exhibits occupational and social impairment with reduced reliability and productivity. The Veteran lives by himself, has never been married, and does not have any children. He does report a few friends and that he attends church, but otherwise does not often leave his home. He also had symptoms that are not listed with a specific rating, such as variable appetite, chronic sleep impairment, and poor sleep habits. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records, and during both the March 2018 and December 2019 VA examination denied an intent and plan for suicide. However, a rating in excess of 70 percent for an acquired psychiatric disorder is not warranted. There is no evidence of disorientation to time or place, persistent delusions or hallucinations, persistent danger of hurting self or others, grossly inappropriate behavior, gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, or memory loss for close relatives, own occupation, or own name. The Board notes further that a higher rating of 100 occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. For these reasons, total occupational and social impairment is not demonstrated by the record, and a 100 percent for the Veteran's acquired psychiatric disorder is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for a left hip condition, to include as secondary to degenerative arthritis of the spine is remanded. 2. Entitlement to service connection for a right hip condition, to include as secondary to degenerative arthritis of the spine is remanded. VA provided the Veteran an examination in July 2017 to determine the nature and etiology of his bilateral hip condition. Unfortunately, this examination is inadequate to adjudicate the Veteran's claim. The examiner provided a negative nexus opinion, in part, because it is not possible to determine whether the Veteran's original laminectomy surgery caused his bilateral hip condition. However, the Veteran is service connected for "Degenerative Arthritis of the Spine, to include IVDS, and Spinal Stenosis (previously rated as S/P partial laminectomy, L4, L5 for HNP with associated degenerative changes)." See January 2020 Rating Decision Codesheet. Accordingly, the examiner did not fully address whether the Veteran's service-connected degenerative arthritis of the spine caused his bilateral hip condition, rather the examiner only considered whether the Veteran's laminectomy caused his bilateral hip condition. Therefore, this opinion is inadequate, and a remand is necessary to obtain a new opinion that provides a reasoned rationale in support of its conclusion. See Barr v. Nicholson, 21 Vet. App. 303, 311; see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). As noted above, the examiner only addressed whether the Veteran's degenerative arthritis of the spine caused his bilateral hip condition and not whether the Veteran's degenerative arthritis of the spine aggravated his bilateral hip condition. A secondary opinion which addresses a causal relationship, but which does not address the question of aggravation, is inadequate. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 3. Entitlement to TDIU prior to October 3, 2019 is remanded. The Veteran's claim of entitlement to TDIU is inextricably intertwined with the claims being remanded; thus, the Board will defer consideration of the appeal with regard to these claims. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran's right and left hip disabilities. The examiner must opine whether the Veteran's right and left hip disabilities are at least as likely as not (1) proximately due to his service connected degenerative arthritis of the spine, or (2) aggravated beyond their natural progression by his service-connected degenerative arthritis of the spine. Aggravation and causation are distinct theories and must be addressed separately and independently of each other. If aggravation is found the examiner must attempt to establish a baseline level of severity of any right or left hip disability prior to aggravation by the service-connected degenerative arthritis of the spine. The examiner must provide a comprehensive rationale for each opinion provided. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If the examiner dismisses any of the Veteran's reported symptomatology, a reason for doing so must be provided. All findings and conclusions should be supported with complete rationale, and review of the file should be noted in the report. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zachery S.C. Luce, 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.