Citation Nr: 21037168 Decision Date: 06/17/21 Archive Date: 06/17/21 DOCKET NO. 17-03 025 DATE: June 17, 2021 ORDER Service connection for bilateral hip conditions, to include as secondary to service connected back, bilateral lower extremity sciatic neuropathy, and bilateral knee conditions, is denied. Service connection for a left ankle condition, to include as secondary to service connected back, bilateral lower extremity sciatic neuropathy, and bilateral knee conditions, is granted. A rating in excess of 70 percent for a depressive disorder, to include a rating in excess of 50 percent prior to December 13, 2019 for a depressive disorder is denied. FINDINGS OF FACT 1. The evidence shows that it is less likely than not (50 percent or more probability) that he Veteran's bilateral hip conditions were caused by his service connected back, bilateral lower extremity sciatic neuropathy, and/or bilateral knee conditions. 2. The evidence is at least as likely as not (50 percent or greater probability) that the Veteran's left ankle condition occurred during service. 3. The evidence does not show that the Veteran's psychiatric symptomatology has caused total social and occupational impairment. Prior to December 13, 2019, the evidence does not show that the Veteran's psychiatric symptomatology had caused occupational and social impairment with deficiencies in most areas, or worse. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hip conditions have not been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 2. The criteria for a left ankle condition have been met. 38 U.S.C.§§ 1110, 5107; 38 C.F.R.§§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.310. 3. The criteria for a rating in excess of 70 percent for a depressive disorder, to include a rating in excess of 50 percent prior to December 13, 2019, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 2004 to November 2005. The Veteran filed service connection claims for a depressive disorder, bilateral ankle conditions and bilateral hip conditions, which were received by VA in June 2013. A rating decision in August 2014 granted service connection for a depressive disorder with an initial rating of 50 percent. A November 2019 Board decision remanded issues of increased rating for a depressive disorder and service connection for bilateral ankles and hips for further development. A rating decision in August 2020 increased the rating for the Veteran's depressive disorder to 70 percent from December 13, 2019. Of note, a rating decision in December 2020 granted service connection for a right ankle condition. This is deemed as a full grant for the issue on appeal (service connection for a right ankle condition). As such, this issue will not be discussed in this decision. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.§ 1110; 38 C.F.R.§ 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) 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 (nexus). Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to, or aggravated by, a service connected disability. 38 C.F.R.§ 3.310 (a). Bilateral Hip Conditions The Veteran is seeking service connection for bilateral hip disabilities, which he believes resulted from his service or from his service-connected back and/or bilateral knee conditions. Service treatment records (STRs) do not show any complains of or treatment for any hip problems. VA treatment records in March 2007 show that the Veteran complained of left lower leg pain which began three years before (in 2004) after injury to back during his basic training in the service. He reported that he had occasional shooting/burning pain down posterior lower extremities and buttocks over the previous three years. A CT conducted in September 2006 showed L5-S1 disc bulge with mass effect on the right S1 nerve root. At a physical examination in March 2007, the Veteran had flexion in both hips without discomfort, but pressure over the right posterior pelvis elicited right sciatic nerve pain. The Veteran's gait was abnormal with a mild limp. The assessment at that time was pinched nerve and pain in right buttocks and right hip. The Veteran was afforded an VA examination in March 2014, at which the examiner diagnosed him with bilateral greater trochanteric bursitis. However, the examiner opined that this condition was less likely related to his service or either secondary to or aggravated by his knees and/or back. The examiner explained that the Veteran had no limp when walking, but did have pain when sleeping on hips and walking, so the hip symptoms were not related or dependent on the symptoms of the knees and back. The Veteran was afforded an VA examination in July 2016, at which the examiner found bilateral sciatica in addition to arthritis of the spine. The Veteran is currently service connected for bilateral lower extremity sciatic neuropathy. The Veteran's treating chiropractor provided a letter which was received by VA in December 2019, stating that he had treated the Veteran for approximately four years, and in his opinion, the Veteran developed symptoms in both of his hips and ankles from his knee and spine injuries, which caused extra stress to his hips and ankles. The Veteran was afforded a VA examination in January 2020, at which he was diagnosed with a bilateral hip strain. The examiner did not find trochanteric hip bursitis. However, as this opinion did not address the chiropractor's opinion, an addendum opinion in October 2020 was requested, the examiner opined that the Veteran's bilateral hip conditions were less likely than not (less than 50 percent probability) incurred in or caused by his service or his service connected back and knee disabilities. The examiner explained that there were no complaints documented in the service for the bilateral hips and no hip condition was noted on separation, that there was no medical literature to show that hip strains would be aggravated due to back or knee abnormalities, and that the Veteran did not exhibit any gross gait abnormalities at the time of the examination which would contribute to excessive compromise of the hips. The examiner specifically noted that the chiropractor's opinion had not cited to any medical literature to support his conclusions. Here, the Board notes that there are multiple opinion's which address the etiology of the Veteran's hip disabilities. However, ultimately the majority of the opinions weigh against service connection, and the most recent opinion specifically refuted the lone positive opinion. This opinion was accompanied by a complete rationale which explained the basis for its conclusions. As such, this opinion is found to be the most probative and therefore service connection for bilateral hip conditions is denied. Left Ankle The Veteran is seeking service connection for a left ankle condition, which he believes, resulted from his service or service-connected back and bilateral knee conditions. (He has already been granted service connection for his right ankle.) Service treatment records (STRs) show that the Veteran's separation physical noted right ankle popping and cracking. However, on the Report of Medical History in conjunction with the separation physical, the Veteran reported left ankle popping and pain. VA treatment records in March 2007 showed that the Veteran had depressed ankle, and jerk on the right side. Records in April 2007 showed that the Veteran reported left ankle numbness. Private treatment records from Dr. Lapante show that x-rays in June 2019 revealed tiny ossicles in the left ankle compatible with an old injury. The Veteran was afforded an VA examination in March 2014, at which the examiner found that his ankles were normal with no diagnosis of disability. The examiner opined that since the examination results were normal and no compensatory gait was found, the Veteran's ankle conditions were not related to or aggravated by his knees or back conditions. The Veteran was afforded an VA examination in January 2020, at which he was diagnosed with bilateral ankle sprain. The examiner indicated that it was possible that the Veteran sustained an ankle injury for which he did not seek medical care during service, and his current condition of mild ankle restriction with popping and cracking was not unusual for someone with previous ankle injury. In an addendum opinion in October 2020, the examiner opined that the Veteran's left ankle condition was less likely than not (less than 50 percent probability) incurred in or caused by his service or his service connected back and knee disabilities. The examiner explained that there were no complaints documented in the service for the left ankle and nothing was noted on separation, that there was no medical literature to show that the ankle condition would be aggravated due to back or knee abnormalities, and that the Veteran did not exhibit any gross gait abnormalities at the time of the examination which would contribute to an excessive compromise of the left ankle. However, the examiner based part of his conclusion on the fact that the Veteran did not have a left ankle disability in service, when one was in fact documented on his separation physical. The Veteran's treating chiropractor provided a letter which was received by VA in December 2019, stating that he had treated the Veteran for approximately four year, in his opinion, the Veteran developed symptoms in both of his hips and ankles from his knee and spine injuries, which caused extra stress to his hips and ankles. Given the presence of left ankle complaints at separation, the Board will resolve reasonable doubt in the Veteran's favor, and grant service connection for a left ankle disability. Increased Rating The Veteran's depressive disorder is rated under the General Rating Formula for Mental Disorders, which provides that: A 50 percent evaluation is assigned when a veteran's psychiatric disorder causes 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran's psychiatric disorder causes occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran's psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9434. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating 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. C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). 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 v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as 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. A VA examination in March 2014 diagnosed the Veteran with depressive disorder secondary to pain in knees and back. The Veteran reported that he was married and his wife was pregnant, that he got along fairly well with his wife although with some disagreement, that he had quite a few friends, but did not socialize with them outside of work, and that he talked to friends from childhood on occasion. He also reported that he did well at work, although he got irritable and had an attitude problem, but he tried to keep the irritation inside. The examiner indicated that the Veteran had symptoms of depressed mood, mild memory loss, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner concluded that he Veteran's psychiatric symptomology had caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, which mirrors a 30 percent rating under DC 9434. A VA examination in September 2019 indicated that the Veteran reported that he lived with wife of five years and two sons, that he lost his temper easily with family and friends, but with no physical violence, that he was socially isolated, and that his irritability had pushed friends away. The examiner noted that the Veteran worked at Willamette National Cemetery operating heavy equipment. He reported that his work had been stressful, that he felt distant from several of his fellow employees, that his relationship with the foreman was strained by his easy irritability, and that he avoided physical fights on the job. The examiner indicated that he had symptoms of depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner concluded that he Veteran's psychiatric symptomology had caused occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, which mirrors a 10 percent rating under DC 9434. A VA examination conducted on December 13, 2019 indicated that the Veteran lived with wife and two kids, that he had married for six years and his wife had mentioned divorce, that he was working for Willamette National Cemetery, and that he had verbal confrontations at work, though he has not been written up for them. The examiner indicated that the Veteran had symptoms of depressed mood, chronic sleep impairment, mild memory loss, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting into stressful circumstances, impaired impulse control and suicidal ideation. The examiner concluded that he Veteran's psychiatric symptomology had caused occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment and thinking or mood, which mirrors a 70 percent rating under DC 9434. The Veteran was afforded a VA examination in May 2021, at which he reported that he was living with wife and two kids, that he had been married for seven years, that he had arguments with wife and that she had mentioned divorce, and that he had friends, but did not socialize with them outside of work. He also reported that he had been working for Willamette National Cemetery for 13 years, that he had a poor, irritable attitude, and argued with foreman multiple times, but he was able to keep the job due to his good work performance. The examiner indicated that the Veteran had symptoms of depressed mood, chronic sleep impairment, mild memory loss, flattened affect, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting into stressful circumstances, and suicidal ideation. The examiner indicated that the Veteran was appropriately dressed and groomed, had normal speech, calm psychomotor movement, restricted affect, depressed mood, linear thought process, good insight, and good judgement. The Veteran endorsed passive suicidal ideation without current intent or planing, but denied any homicidal ideation. The VA treatment recorders do not show symptoms more severe that those reflected in the VA examinations during the same period ot time. For example, VA mental status examination in April 2018 showed that the Veteran had adequate grooming, no evidence of any psychomotor abnormalities, had minimal pain behavior with appropriated eye contact, normal speech, and depressed mood, and that he denied suicidal or homicidal ideations. VA treatment records in February 2019 show that the Veteran reported depression, short temper, outburst, losing friends, poor sleep, chronic back pain and nerve pain, that he denied suicidal or homicidal ideations, saying that his kids were huge protective factor, and that he did not want his kids to grown up without a father. At his Board hearing in June 2019, the Veteran reported that his depression got worse and he cried a lot but did not know why. A letter from his employer dated February 2017 showed that the Veteran received a sick leave warning, that he had frequent absences from work and his use rate of sick leave was greater than accrual rate. The Veteran's wife submitted a statement which was received by VA in May 2021, reporting that the Veteran had rage episodes every month, seemingly without. Prior to December 13,2019 The Board finds that prior to December 13, 2019, the evidence is insufficient to show that the Veteran's psychiatric symptomology had caused occupational and social impairment with deficiencies in most areas. VA examinations in March 2014 and September 2019 as well as VA treatment records during this period do not show many of the 70 percent symptoms, such 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, or impaired impulse control. The Veteran was noted to have a good family relationship and he reported interacting with friends. He was also employed full time, without evidence of significant problems. Accordingly, after considering the severity, frequency, and duration of all symptoms displayed by the records, the Board finds that the evidence is insufficient to support a 70 percent rating prior to December 13, 2019. From December 13, 2019 At no time does the record reflect that the Veteran's psychiatry symptomology has caused total social impairment or total occupational impairment. While the records show that the Veteran had difficulty time with his families and friends, he did manage to maintain a family relationship with his wife and two kids, and maintain relationship with his friends at work. While the Veteran may have experienced relationship issues, a 70 percent rating contemplates the inability to establish and maintain effective relationships. As such, a 70 percent rating is already assigned for substantial problems in relationships. Moreover, regardless of his poor attribute and irritability at work, the Veteran has been able to maintain his employment and perform his job duties well. As such, a 100 percent rating for a depressive disorder is not warranted. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Q. Wang, 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.