Citation Nr: 21040080 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 17-10 692 DATE: July 2, 2021 ORDER The issue of an effective date earlier than February 25, 2011, for the award of non-service connected pension is dismissed. The issue of an earlier effective date than October 25, 2011, for an increased rating of 40 percent for a lumbar strain with degenerative arthritis and intervertebral disc syndrome (low back disability) is dismissed. Service connection for a depressive disorder, as secondary to service-connected low back disability, is granted. An effective date earlier than September 23, 2014, for the grant of service connection for right lower extremity radiculopathy is denied. REMANDED The issue of an increased rating in excess of 40 percent, prior to November 1, 2015, for a low back disability is remanded. The issue of an increased rating in excess of 20 percent, since November 1, 2015, for a low back disability, is remanded. The issue of an initial rating higher than 10 percent for right lower extremity radiculopathy is remanded. The issue of service connection for obstructive sleep apnea (OSA), as secondary to service-connected low back disability and a depressive disorder, is remanded. The issue of service connection for a respiratory disability, to include as secondary to service-connected low back disability, is remanded. The issue of service connection for a left leg disability, as secondary to service-connected low back disability, is remanded. The issue of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the February 2021 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran withdrew the issues of an effective date earlier than February 25, 2011, for the award of non-service connected pension and an earlier effective date than October 25, 2011, for an increased rating of 40 percent for a low back disability. 2. The Veteran's depressive disorder is caused by his service-connected low back disability. 3. The Veteran did not submit a claim of service connection for right lower extremity radiculopathy prior to a VA examination on September 23, 2014; moreover, it was not factually ascertainable that the condition existed prior to that time. CONCLUSIONS OF LAW 1. The criteria for a withdrawal of an appeal of the issue of an effective date earlier than February 25, 2011, for the award of non-service connected pension are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a withdrawal of an appeal of the issue of an earlier effective date than October 25, 2011, for an increased rating of 40 percent for a low back disability. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The criteria for service connection for a depressive disorder, as secondary to service-connected low back disability, are met. 38 U.S.C. §§ 1131, 1110, 5107; 38 C.F.R. §§ 3.303, 3.310. 4. The criteria for an effective date earlier than September 23, 2014, for the award of service connection for right lower extremity radiculopathy are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to August 1983 and February 1990 to November 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from August 2015 and February 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran presented testimony before the undersigned Veterans Law Judge. During the hearing, the Veteran's request for the record to be held open for an additional 60 days to allow him to submit additional evidence was granted. The claim of service connection for a respiratory disorder (claimed as COPD and pulmonary issues) have been recharacterized in light of Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (a claim should not be limited to the disorder as characterized by the Veteran, but must be characterized and addressed based on the reasonable expectations of the non-expert claimant and the evidence in processing the claim). During the February 2021 Board hearing, the Veteran raised the issue of a TDIU as part and parcel of the increased rating claims for the low back disability and right lower extremity radiculopathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Withdrawal The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. During the February 2021 Board hearing, the Veteran stated that he wished to withdraw his appeal as to the issues an effective date earlier than February 25, 2011, for the award of non-service connected pension and an earlier effective date than October 25, 2011, for an increased rating of 40 percent for a low back disability. "[W]ithdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant validly withdrew his appeal orally must include a finding regarding whether [the appellant] understood the consequences of withdrawing his claims." Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). During the February 2021 Board hearing, the Veterans Law Judge explained the consequences of withdrawing the issues. The Veteran confirmed that he wished to withdraw his appeal as to the issues an effective date earlier than February 25, 2011, for the award of non-service connected pension and an earlier effective date than October 25, 2011, for an increased rating of 40 percent for a low back disability. Additionally, given the discussion during the Board hearing regarding the other claims on appeal, the Board finds that the Veteran understood the consequences of withdrawing the appeal as to the issues an effective date earlier than February 25, 2011, for the award of non-service connected pension and an earlier effective date than October 25, 2011, for an increased rating of 40 percent for a low back disability. In light of the above, there remain no allegations of errors of fact or law for appellate consideration as to these issues. Accordingly, the Board does not have jurisdiction to review the appeal of the issues, and they are dismissed. Secondary Service Connection Service connection is warranted for disability proximately due to, the result of, or aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310 (a), (b). Service connection for a depressive disorder. The Veteran claims that his depression disorder is secondary to service-connected low back disability. See Board hearing transcript (February 2021); Attorney's brief (April 2021). The Veteran has also suggested that his depressive disorder may be due to his military service. See Board hearing transcript (February 2021). In this case, the evidence supports that the Veteran's depression disorder is secondary to his service-connected low back disability, which will be explained below, and thus, service connection on a direct service connection basis will not be discussed further. For the reasons below, service connection for a depression disorder, on a secondary basis, is warranted. The medical evidence shows a diagnosis of a depression disorder. See Ph.D. Quinn August-Small's (Dr. Q. Austin-Small) psychiatric evaluation report (August 2020). Therefore, the current disability element has been satisfied. Therefore, the remaining question is whether the Veteran's depression disorder is caused or aggravated by his service-connected low back disability. In a March 2010 psychiatric report, a psychologist interviewed the Veteran and noted his reports of back and knee pain and indicated that he was unable to care for himself and work due to his pain and disabilities. The psychologist diagnosed an acquired psychiatric disorder and noted knee problems and complaints of back problems in Axis III. In August 2020, the Veteran underwent a psychiatric evaluation by Dr. Q. Austin- Small. Dr. Q. Austin-Small indicated that she reviewed the Veteran's claims file, interviewed him, and opined that the Veteran's depression disorder is secondary, in part, to his service-connected low back disability. Dr. Q. Austin-Small explained that the Veteran lost interest in socializing and pursing hobbies, secondary to his orthopedic difficulties. Dr. Q. Austin-Small indicated that the Veteran's low back disability (and his knee issues) caused him pain, an inability to sleep, and caused significant physical limitations that further depressed him and impaired his mood. Dr. Q. Austin-Small noted that a review of the Veteran's medical records supports that the Veteran's depressive disorder is, in part, secondary to his service-connected low back disability, as Dr. Q. Austin-Small cited to several of the Veteran's treating physician's notations in treatment records that the Veteran's pain affected his mood and diagnosed depression. Additionally, Dr. Q. Austin-Small noted a March 2010 psychiatric evaluation where the Veteran was diagnosed as having an adjustment disorder, secondary to back and knee problems. The Board acknowledges that Dr. Q. Austin-Small's positive opinion attributes the Veteran's depressive disorder to his service-connected low back disability and his non-service connected knee disability. To this extent, Dr. Q. Austin-Small did not differentiate between symptomatology associated with the Veteran's low back disability and the nonservice-connected knee disability. To this end, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102 (2014); Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Regardless, the evidence supports that the Veteran's service-connected low back disability has caused severe pain. See Board hearing transcript (February 2021). To this extent, Dr. Q. Austin-Small's positive opinion supports that the Veteran's pain, from his orthopedic issues, have resulted in his current depressive disorder. Dr. Q. Austin-Small's opinion is entitled to significant probative weight, as she explained the reasons for the conclusions based on an accurate characterization of the evidence of record and her medical expertise. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Additionally, Dr. Q. Austin-Small cited to the medical evidence, including the March 2010 psychiatric report, which supported her positive nexus opinion. Importantly, there is no opinion to the contrary. In sum, the Board finds that the evidence supports that the Veteran's depressive disorder is caused by his service-connected low back disability. Resolving any reasonable doubt in the Veteran's favor, service connection for a depression disorder, as secondary to the service-connected low back disability, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. To the extent that other psychiatric disorders have been diagnosed, there is no indication that there are distinct psychiatric symptoms attributable to such disorders, and all psychiatric symptoms will therefore be attributed to the now service-connected depressive disorder. See Howell v. Nicholson, 19 Vet. App. 535, 540 (2006); Mittleider v. West, 11 Vet. App. 181, 182 (1998) (VA must apply the benefit of the doubt doctrine and attribute the inseparable effects of a disability to the claimant's service-connected disability). Consequently, consideration of whether other psychiatric disorders are related to the Veteran's service-connected disabilities and/or his military service is unnecessary. Effective Date Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An effective date earlier than September 23, 2014, for the grant of service connection for right lower extremity radiculopathy. In this case, the Veteran did not file a claim of service connection for radiculopathy in the right lower extremity. Rather, in July 2014, the Veteran filed an increased rating claim for his low back disability. See application for disability compensation and related compensation benefits (July 2014). In connection with that claim, the Veteran was afforded a VA examination on September 23, 2014. A review of the examination report shows that the Veteran was diagnosed as having mild radiculopathy of the right lower extremity, associated with his low back disability. In consideration of that diagnosis, the RO awarded service connection for radiculopathy of the left lower extremity, effective September 23, 2014, the date that the evidence first showed a diagnosis of that condition. Prior to September 23, 2014, the Veteran denied radiating symptoms in the right leg and there was no indication of radiculopathy of either lower extremity on examination of the Veteran. See, e.g., VA examination report (May 2013). For the following reasons, an effective date earlier than September 23, 2014, for the award of service connection for right lower extremity radiculopathy is not warranted. As indicated, the Veteran did not file a claim of service connection for right lower extremity radiculopathy. Rather, the condition was first noted upon VA examination in September 2014, and the RO granted service connection for the condition as secondary to a service-connected low back disability. The date for the grant of service connection was the date of the examination when the condition was first noted. Notably, in the April 2021 Veteran's attorney's brief, the attorney conceded that September 23, 2014, was the proper effective date for right lower extremity radiculopathy. In this case, there is no basis upon which to assign an effective date earlier than September 23, 2014, for the award of service connection for right lower extremity radiculopathy. There is no document of record that was received by the RO earlier than September 23, 2014, wherein the Veteran requested service connection for right lower extremity radiculopathy and the Veteran was not diagnosed until the September 23, 2014, VA examination. Consequently, as the Veteran is already in receipt of the earliest possible effective date for the award of service connection for right lower extremity radiculopathy, the assignment of an effective date earlier than September 23, 2014, for the award of service connection for right lower extremity radiculopathy is not warranted and the claim must be denied. See 38 C.F.R. § 3.400. REASONS FOR REMAND 1. The issue of an increased rating in excess of 40 percent, prior to November 1, 2015, for a low back disability is remanded. In this case, the evidence is unclear as to the current severity of the Veteran's low back disability prior to November 2015. For example, in a September 2014 VA back examination, the VA examiner indicated that the Veteran had incapacitating episodes over the past 12 months, but also wrote "with no incapacitating episodes during the past 12 months". To this extent, the September 2014 VA examiner's findings are unclear as to whether the Veteran had incapacitating episodes that required bedrest by a physician and, if so, the duration thereof. Therefore, a remand is necessary to obtain an addendum opinion to the September 2014 VA examination, regarding the severity of the Veteran's low back disability. 2. The issue of an increased rating in excess of 20 percent, since November 1, 2015, for a low back disability, is remanded. 3. The issue of an initial rating higher than 10 percent for right lower extremity radiculopathy is remanded. During the February 2021 Board hearing, the Veteran testified that his low back disability and right lower extremity radiculopathy symptoms had worsened since his last VA examinations in September 2014. Specifically, he testified that his low back and lower extremity radiculopathy symptoms had increased in frequency and that he had daily incapacitating episodes. Therefore, a remand is necessary to afford the Veteran new VA examinations to determine the current severity of his service-connected low back disability and right lower extremity radiculopathy. See, e.g., Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) ("Where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination"). 4. The issue of service connection for OSA, as secondary to service-connected low back disability and a depressive disorder, is remanded. The Veteran claims that his OSA is secondary to his service-connected low back disability and depressive disorder. See Dr. Graf's letter (September 2020); Board hearing transcript (February 2021). Specifically, the Veteran asserts that his low back pain prevented him from sleeping. See Board hearing transcript (February 2021). The Veteran's VA treatment records indicate that he has been diagnosed as having OSA and that he underwent a sleep study. See VA treatment records (February 2012; March 2013). In a September 2020 letter, Dr. Graf stated that the Veteran "has a more likely than not service connection to sleep apnea syndrome. He requires the use of a breathing device." Dr. Graf's opinion is vague and provides no clear etiology as to the Veteran's OSA; moreover, it lacks sufficient rationale for its conclusion. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his OSA. As the evidence indicated that the Veteran has OSA that may be associated with a service-connected disability, upon remand a medical opinion should be obtained regarding the claim of service connection for OSA. See 38 U.S.C. § 5103A(d)(2) 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 5. The issue of service connection for a respiratory disability, to include as secondary to service-connected low back disability, is remanded. The Veteran claims that his respiratory disability is due to his military service and that he has had a cough in and since service. See Board hearing transcript (February 2021); attorney's brief (April 2021). Specifically, the Veteran contends that his in-service cough resulted in bronchitis, which caused his current respiratory disability. Id. Notably, in the attorney's brief, the Veteran's attorney asserts that the Veteran's respiratory disability was the result of in-service exposure to freon. Alternatively, he asserts that his respiratory disability is secondary to his service-connected low back disability. The Veteran's VA treatment records list asthma as an active problem. See, e.g., VA treatment record (April 2017). An October 1987 service treatment record notes the Veteran was seen for productive cough and chest congestion which was assessed to be early bronchitis. On an undated Medical Surveillance Questionnaire in the Veteran's service treatment records, the Veteran indicated he had been exposed to potential hazards including freon. In a September 2020 letter, a Dr. Graf stated that the Veteran has "an ongoing condition of bronchial asthma"; however, no further details regarding the Veteran's bronchial asthma were provided. The Veteran has not been afforded a VA examination to determine the nature and etiology of his respiratory disability. As the evidence indicated that the Veteran has a current respiratory disability, namely asthma, that may be associated with his military service, upon remand the Veteran should be scheduled for a VA examination regarding his claim of service connection for a respiratory disability. See 38 U.S.C. § 5103A(d)(2) 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 81. 6. The issue of service connection for a left leg disability, as secondary to service-connected low back disability, is remanded. The Veteran claims that he has a left leg disability that is secondary to his service-connected low back. See Board hearing transcript (February 2021); attorney's brief (April 2021). VA treatment records list "pain in joint involving lower leg" as an active problem. See VA treatment record (January 2018). The Veteran has not been afforded a VA examination to determine the nature and etiology of his left leg disability. As the evidence indicated that the Veteran has pain in his left leg, that may be associated with his service-connected low back disability, upon remand the Veteran should be scheduled for a VA examination regarding his claim of service connection for a left leg disability. See 38 U.S.C. § 5103A(d)(2) 38 C.F.R. § 3.159(c)(4)(i); McLendon, 20 Vet. App. at 81. 7. The issue of TDIU is remanded. The issue of a TDIU is inextricably intertwined with the claims of service connection and increased ratings that are remanded herein; therefore, the issue of a TDIU must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain updated VA treatment records. 2. Obtain an addendum opinion to the September 2014 VA back examination from the September 2014 VA examiner, if possible, regarding the severity of the Veteran's low back disability prior to November 2015. If the September 2014 VA examiner is no longer available, obtain an opinion from another VA physician. After a review of the September 2014 VA examination and VA treatment records, the physician should indicate whether the Veteran had incapacitating episodes (that required bed rest prescribed by a physician and treatment by a physician) having a total duration of at least four weeks but less than six weeks during the past 12 months, at the time of the September 2014 VA examination and/or prior to November 2015. The physician must provide a complete rationale. 3. Schedule the Veteran for a VA examination to determine the current severity of his service-connected low back disability. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. 4. Schedule the Veteran for a VA examination to determine the current severity of his service-connected right lower extremity radiculopathy. All necessary tests should be conducted. The claims file must be sent to the examiner for review. The examiner should examine the Veteran and provide findings in accordance with the currently applicable disability benefits questionnaire. All opinions must be supported by a detailed rationale. 5. Refer the claims file to a physician to address the etiology of the Veteran's OSA. The Veteran does not need to be examined, unless the physician determines it is necessary. The physician should review the entire claims file, including the Veteran's hearing testimony. The physician should provide an opinion as to a. whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused by his service-connected low back disability. b. whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was aggravated (worsened) by his service-connected low back disability. c. whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was caused by his service-connected depressive disorder. d. whether it is at least as likely as not (50 percent or greater probability) that the Veteran's OSA was aggravated (worsened) by his service-connected depressive disorder. The physician must provide a complete rationale for the opinions rendered. 6. Schedule the Veteran for an examination to determine the nature and etiology of his respiratory disability. The examiner should review the entire claims file, including the Veteran's February 2021 hearing testimony, before answering the following: a. Identity the Veteran's respiratory disabilities since the date of his claim in January 2013. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability (including asthma) had its onset in service or is otherwise related to service, to include as due to in-service exposure to freon (see undated Medical Surveillance Questionnaire in service treatment records). The examiner should address the Veteran's reports of an in-service cough in and since service (see October 1987 service treatment record and February 2021 hearing testimony. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability was caused by his service-connected low back disability. d. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's respiratory disability was aggravated (worsened) by his service-connected low back disability. The examiner must provide a complete rationale for each opinion rendered. 7. Schedule the Veteran for an examination to determine the nature and etiology of his left leg disability. The examiner should review the entire claims file, including the Veteran's February 2021 hearing testimony, before answering the following: a. Identity the Veteran's left leg disability since the date of his claim in February 2012 by (1) diagnosis or (2) functional impairment. b. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left leg disability (including pain in joint involving lower leg that is noted as an active problem in the Veteran's VA treatment records) was caused by his service-connected low back disability. c. Whether it is at least as likely as not (50 percent or greater probability) that the Veteran's left leg disability (including pain in joint involving lower leg that is noted as an active problem in the Veteran's VA treatment records) was aggravated by his service-connected low back disability. The examiner should provide a complete rationale for each opinion rendered. 8. After the above development has been completed readjudicate the issues on appeal, including the inextricably intertwined issue of a TDIU. If the benefits sought is not granted to the Veteran's satisfaction, send the Veteran and his attorney a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.