Citation Nr: 22016457 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-53 299A DATE: March 22, 2022 ORDER Entitlement to service connection for an acquired psychiatric disorder, claimed as major depressive disorder (MDD), posttraumatic stress disorder (PTSD), anxiety disorder, and other specified trauma and stress related disorder, is granted. Entitlement to a disability rating in excess of 10 percent for cervical strain (neck disability) prior to May 26, 2021, and in excess of 20 percent thereafter, is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for thoracolumbar strain (back disability) is remanded. FINDINGS OF FACT 1. The Veteran's acquired psychiatric disorder, currently diagnosed as major depressive disorder, is related to his military service. 2. Prior to May 26, 2021, forward flexion is not shown to be 30 degrees or less, the combined range of motion of the cervical spine is greater than 170 degrees, and muscle spasm or guarding is not severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. Since May 26, 2021, there is no evidence of forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as major depressive disorder, have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304. 2. The criteria for entitlement to a disability rating in excess of 10 percent for cervical strain prior to May 26, 2021, and in excess of 20 percent, thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5242-5243. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Marine Corps from March 1999 to February 2002. This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2015 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Board notes that entitlement to service connection for PTSD is not part of this appeal stream. Historically, the Veteran's claim for service connection for PTSD was denied by the AOJ in January and May 2018 rating decisions. The Veteran filed a notice of disagreement; however, and importantly, he also elected to participate in RAMP (Rapid Appeals Modernization Program, the pilot program for the newly enacted Appeals Modernization Act, or AMA) and requested the supplemental claim review opinion. In January 2019, VA notified the Veteran that it had received his election into RAMP and his appeal as to the claim for service connection for PTSD was withdrawn. In January 2019, the AOJ again denied the claim. In January 2020, the Veteran filed a notice of disagreement, and in turn, the AOJ issued a statement of the case in April 2020. In June 2020, the Veteran filed a VA Form 9. However, as the Veteran had elected to be in the RAMP program, his claim should have been handled in the AMA system. In December 2020, the Board notified the Veteran that he did not currently have an appeal before the Board for the issue of entitlement to service connection for PTSD, and due to a prior administrative error, he was given 60 days to file a Decision Review Request form. In January 2021, the Veteran filed a VA Form 20-0995 requesting the supplemental claim process. In April 2021, the AOJ again denied the claim. In May 2021, the Veteran filed a VA Form 10182, seeking review by the Board under the direct review docket. In May 2021, a letter was sent to the Veteran notifying him that his AMA appeal was received. Therefore, the claim for service connection for PTSD will not be addressed in this decision, as it is under the AMA, but the Board will adjudicate the service connection claim for an acquired psychiatric disorder, to include MDD, in this present decision under the legacy appeals system. In Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the United States Court of Appeals for Veterans Claims clarified how the Board should analyze claims for acquired psychiatric disabilities. As emphasized in Clemons, a claim "cannot be limited only to that diagnosis but must rather be considered a claim for any mental disability that may be reasonably encompassed." Id. In January 2021, the Board remanded this matter for additional development, which has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, in a November 2021 rating decision, the AOJ granted entitlement to service connection for headaches, which is a full grant of the benefits sought on appeal; therefore, the issue of entitlement to service connection for headaches is not before the Board. AB v. Brown, 6 Vet. App. 35 (1993). With respect to the Veteran's claims decided herein, VA has met all statutory and regulatory notice and duty-to-assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Neither the Veteran nor his representative has advanced any procedural arguments in relation to VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that "absent extraordinary circumstances...we think it is appropriate for the Board and the Veterans Court to address only those procedural arguments specifically raised by the veteran...."). Service Connection 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(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-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). Some chronic diseases may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). Determinations as to service connection will be based on review of the entire evidence of record, to include all pertinent medical and lay evidence, with due consideration to VA's policy to administer the law under a broad and liberal interpretation consistent with the facts in each individual case. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Service treatment records (STRs) were silent for any treatment, complaints, or diagnosis of MDD. However, December 1988 pre-induction examination noted that he had to gone to family counseling about a year prior to the examination. An April 1999 treatment note documented he had treatment prior to service for depression. The examiner noted that he did not have depression or symptoms of depression since that time. The Veteran was once prescribed Prozac after a brief depression about a romantic break-up at age 18, and he never had any other depressive periods. The examiner noted in his assessment "no diagnosis." A July 2018 PTSD disability benefits questionnaire (DBQ) report submitted by the Veteran documented that the Veteran was diagnosed with MDD, anxiety unspecified, and other specified trauma and stress related disorder. A treatment record from the same doctor, dated in February 2018, diagnosed MDD and PTSD, but indicated that a "broader definition" of a traumatic event would be needed to justify the PTSD diagnosis. The Veteran felt the event was life-threatening, however. A September 2018 VA treatment note documented that the Veteran was seen for mental health treatment. He reported that he experienced a life changing incident in 2000 while in-service. He indicated that he fell and injured his back and neck during a training exercise. The Veteran reported that he felt like he was going to die at the time of the incident and required medical attention. Following the evaluation of the Veteran, the examiner concluded that he met diagnostic criteria for MDD, moderate anxious distress, and unspecified trauma and stress related disorder. On January 2020 PTSD DBQ submitted by the Veteran and completed by a licensed clinical social worker, reported that he was diagnosed with PTSD, depression, and an anxiety disorder secondary to PTSD. The examiner opined that the Veteran's conditions was as likely as not because of his service. The examiner did not provide a rationale for her opinion. To be clear, the Veteran has a single acquired psychiatric disorder, which has been variously diagnosed as MDD, PTSD, anxiety, and unspecified trauma and stress related disorder. Based on review of the file, the Board finds that MDD is the most appropriate diagnosis. Those examiners diagnosing PTSD either question the adequacy of the stressor event, or are not qualified to render a diagnosis. VA treatment records clearly state that the full criteria for PTSD are not met. Overall, treatment records indicate an appropriate diagnosis of MDD, with anxiety and stress-related symptoms. Further, throughout the appeal physicians have diagnosed the Veteran with MDD and PTSD based on the same in-service event. Based on the evidence of record, the Board concludes that the evidence favors a finding that the Veteran's MDD was caused or aggravated by his military service. In this regard, the Veteran's treating VA psychologist, found that the Veteran's MDD was related to the traumatic experiences he had during his military service. Further, the January 2020 DBQ examiner opined that the Veteran's conditions were due to his military service. Therefore, resolving all reasonable doubts in the Veteran's favor, the Board concludes that the criteria for service connection for MDD, is met. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any 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 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board notes that the Veteran's cervical spine disability was originally coded under Diagnostic Code 5242 and now coded under Diagnostic Code 5237. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed. As it pertains to the cervical spine, the General Rating Formula provides a 20 percent disability rating for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is warranted for unfavorable ankylosis of the entire cervical spine, and a 100 percent evaluation is warranted if there is unfavorable ankylosis of the entire spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Diagnostic Code 5243 has been revised effective February 7, 2021. In this respect, Diagnostic Code 5243 now only applies when there is disc herniation with compression and/or irritation of the adjacent nerve root and Diagnostic Code 5242 is assigned for all other disc diagnoses. Regardless of any change to the rating criteria, there is no evidence of this type of impairment; there is no herniated disc diagnosis. In evaluating any disability based on limitation of motion, VA must consider the actual degree of functional impairment imposed by pain, incoordination, weakness, fatigue, and lack of endurance with repetitive motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). While pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Additionally, flare-ups must be factored into an examiner's assessment of functional loss. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). In Correia v. McDonald, 28 Vet. App. 158 (2016), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. In June 2013, the Veteran was afforded a neck condition examination. He was diagnosed with cervical strain. He did not report any flare-ups that impacted the function of his neck. His initial range of motion (ROM) was 45 degrees for flexion with evidence of pain, 25 degrees for extension with evidence of pain, 25 degrees for right and left lateral flexion with evidence of pain, and 30 degrees for right and left lateral rotations with evidence of pain. He was able to perform repetitive use testing. Post-ROM was 45 degrees for flexion, 25 degrees for extension, 25 degrees for left and right lateral flexion, 30 degrees for right and left lateral rotation. He had less movement than normal, weakened movement, and pain on movement as a contributing factor of his disability. He did not have localized tenderness or pain to palpation for joints/soft tissue of the neck. He had guarding or muscle spasm present but did not result in abnormal gait or spinal contour. He did not have muscle atrophy. He had a normal muscle strength testing, reflex examination, and sensory examination. He did not have a radicular pain or any other signs or symptoms due to radiculopathy. There were no other neurologic abnormalities related to his neck condition. He had IVDS of the spine; however, he did not have any incapacitating episodes over the past 12 months. He did not use an assistive device for his condition. The examiner opined that the Veteran's neck condition did not impact his ability to work. In May 2021, the Veteran was afforded a VA neck condition examination. He was diagnosed with cervical strain s/p fusion and discectomy. He indicated that his current symptoms included radiating neck pain, cracking, and stiffness. The Veteran reported that his flare-ups occurred daily, were mild, and varied in duration. His flare-ups were precipitated by heavy lifting and prolonged standing. He described a functional loss/impairment as neck pain, difficulty with heavy lifting over 20 pounds, and limited ROM. His initial ROM was 40 degrees for flexion, 40 degrees for extension, 40 degrees for right and left lateral flexion, and 60 degrees for right and left lateral rotation. Pain was noted on the examination during ROM testing. Passive ROM testing was the same as active ROM testing. There was evidence of pain on weight-bearing, active motion, and passive motion. Pain caused a functional loss. The Veteran had lack of endurance and decrease ROM. There was no objective evidence of crepitus. There was no objective evidence of localized tenderness or pain on palpation of the joint associated soft tissue. Repetitive use testing showed ROM was 35 degrees for flexion, 35 degrees for extension, 35 degrees for right and left lateral flexion, and 55 degrees for right and left lateral rotation. Pain and lack of endurance caused a functional loss with repeated use over time. Estimated ROM was 30 degrees for flexion, extension, right and left lateral flexion and 50 degrees for right and left lateral rotation. Pain and lack of endurance caused a functional loss with flare-ups. Estimated ROM was 25 degrees for flexion, extension, right and left flexion and 45 degrees for right and left lateral rotation. He did not have localized tenderness, guarding, or muscle spasms of the cervical spine. He had a normal muscle strength testing, reflex examination, and sensory examination. He did not have muscle atrophy or ankylosis. He did not have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran had a scar that was related to his neck condition. He did not have IDVS of the cervical spine. The Veteran used a brace and cane as an assistive device for his condition. The examiner opined that the Veteran's neck condition impacted his ability to work. The Veteran had neck pain, difficulty with heavy lifting, and limited ROM. Prior to May 26, 2021 Prior to May 26, 2021, the evidence of record does not reflect cervical spine flexion of 30 degrees or less and does not otherwise reflect a combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The June 2013 VA examination report showed ROM for flexion was 45 degrees. Even after repetitive use testing the Veteran did not have any additional ROM or functional loss. Further, although he had guarding or muscle spasm present, it did not result in abnormal gait or spinal contour. The evidence does not show or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Even considering additional functional loss and impairment during flare-ups and periods of repeated use, the evidence does not show that such impairment would be akin to forward flexion of 30 degrees or less. During, the June 2013 VA examination report, he did not report any flare-ups. Also, the examiner noted that he had less movement than normal, weakened movement and pain on movement that was an additional limitation. Although he had pain and weakened movement, it was not such that it caused his forward flexion to greater than 15 degrees but not greater than 30 degrees. He did not have an abnormal spinal contour. From May 26, 2021 From May 26, 2021, the evidence of record does not reflect forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine to warrant a rating in excess of 20 percent. Even considering additional functional loss and impairment during flare-ups and periods of repeated use, the evidence does not reflect that such impairment would be akin to forward flexion of 15 degrees or less or manifest in ankylosis. The May 2021 VA examiner considered functional loss and impairment during flare-ups and periods of repeated use but estimated that flexion was 30 and 25 degrees. Accordingly, a higher rating is not warranted. The Board notes that the May 2021 VA examination showed that he had scar related to his neck condition. The Veteran is already in receipt of a separate noncompensable rating for his neck scar. Thus, any additional compensation for this symptom would be considered pyramiding. See November 2021 rating decision. Thus, the Veteran's neck condition does not more closely approximate a higher disability rating. 38 C.F.R. § 4.7. Therefore, the evidence is against this claim. 38 C.F.R. § 4.3. A disability rating in excess of 10 percent for a neck condition prior to May 26, 2021, and in excess of 20 percent thereafter is denied. REASONS FOR REMAND In May 2021, the Veteran was afforded a VA back condition examination. He reported that his current symptoms were a sharp stabbing back pain and stiffness. He indicated that his flare-ups occurred daily and varied in severity. His flare-ups were precipitated by prolonged standing, walking, and heavy lifting. He described a functional loss/impairment as back pain, stiffness, difficulty with heavy lifting, and prolonged walking. The examiner noted that the Veteran refused to do ROM testing. Therefore, numerical results for any ROM testing were not obtained. As such, this VA examination is inadequate, and the Board must remand the claim for new examination to determine the current severity of the back disability. On January 2022 remarks to supplemental statement of the case, his attorney provided an explanation of what happen during the May 2021 VA examination. The Veteran noted that he was asked to bend forward, and he told the examiner. "I can bend but it is painful, and I will be in pain if I do that." The examiner told him to specifically not perform any movements that would be painful. His attorney requested that for another VA examination or to grant the Veteran a higher disability rating. The Board notes that the Veteran as a duty to assist and cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993). The Board appreciates and supports the Veteran's desire to avoid pain, but asks that he cooperate with testing to the fullest extent possible. The matters are REMANDED for the following action: 1. Associate updated VA treatment records with the claims file. 2. Schedule the Veteran for a VA back examination to evaluate the nature and current severity of his service-connected back disability. The Veteran is encouraged to participate in all testing to the extent possible, in order to determine the point at which pain or other symptoms impact functioning. 3. Thereafter, readjudicate the remanded issues. If the benefit sought remains denied, issue a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.