Citation Nr: 1736608	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  10-13 756	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected back and left elbow disabilities.

2.  Entitlement to a compensable rating for residuals of a scar, left olecranon process.

3.  Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU).


REPRESENTATION

Appellant represented by:	Christopher J. Boudi, Attorney


WITNESSES AT HEARING ON APPEAL

Appellant and N.R.
ATTORNEY FOR THE BOARD

T. Douglas, Counsel


INTRODUCTION

The appellant is a Veteran who served on active duty from September 1972 to September 1975.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision by the St. Louis, Missouri, Regional Office (RO) of the Department of Veterans Affairs (VA).  Appellate jurisdiction was subsequently transferred to the RO in Chicago, Illinois.

In September 2011, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge.  A copy of the transcript of that hearing is of record.  The Board, in pertinent part, remanded issues then on appeal for additional development in February 2013.  The Veteran waived Agency of Original Jurisdiction (AOJ) consideration of evidence provided in July 2017.

The Board notes that a May 2016 rating decision granted entitlement to service connection for degenerative disc disease of the lumbar spine.  A 10 percent rating was assigned for the disability from October 20, 2008, and a 20 percent rating was assigned from August 4, 2015.  The issue of entitlement to an evaluation of 10 percent based on multiple, noncompensable, service-connected disabilities was found to have been rendered moot as a result of assigned compensable ratings and was not re-certified for appellate review.  See 38 C.F.R. § 3.324 (2016) (a rating under this section may not be assigned in combination with any other rating).

The May 2016 rating decision also granted an increased 50 percent rating for lateral epicondylitis with ankylosis, left elbow, as a residual of a left olecranon process fracture, from October 20, 2008.  The Veteran was notified that his appeal as to this issue was considered to have been fully resolved.  As there is no indication of any disagreement with the assigned rating or effective date and the issue was not re-certified for appellate review, the Board finds no additional action is required.

The Board notes that in March 2017 the Director of VA's Compensation Service denied entitlement to a TDIU on an extra-schedular basis under the provisions of 38 C.F.R. § 4.16(b).  There is no impediment to a present appellate review of that question.  See Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining that "the Board is required to obtain the Director's decision before the Board may award extraschedular TDIU"); see also Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (Board reviews the Director's extraschedular decision de novo, and may, therefore, assign an extraschedular rating after the Director's decision).  


FINDINGS OF FACT

1.  The evidence demonstrates the Veteran has persistent depressive disorder that is proximately due to his service-connected degenerative disc disease of the lumbar spine and lateral epicondylitis with ankylosis, left elbow, as a residual of a left olecranon process fracture.

2.  The evidence demonstrates that the Veteran's scar to the left olecranon process is stable and not painful.

3.  The Veteran's service-connected disabilities render him unable to secure and follow a substantially gainful occupation.


CONCLUSIONS OF LAW

1.  The criteria for service connection for an acquired psychiatric disorder, to include as secondary to service-connected back and left elbow disabilities, have been met.  38 U.S.C.A. §§ 1110, 1131 (West 2014); 38 C.F.R. §§ 3.303, 3.310 (2016).

2.  The criteria for a compensable rating for residuals of a scar, left olecranon process, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7804 (effective before and after October 23, 2008).  

3.  The criteria for entitlement to a TDIU are met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 4.16(a) (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The matter was Remanded for the purpose of obtaining additional treatment records, affording the Veteran examinations, soliciting employment information from the Veteran, and referring the issue of TDIU to the Director of Compensation and Pension for extraschedular consideration.  Efforts were taken to accomplish those instructions.  The Board finds that there has been substantial compliance with its remand instructions, and the claim is ready for disposition. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (noting that Stegall requires substantial compliance with remand orders, rather than absolute compliance).

Neither the Veteran nor his attorney has raised any other issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Service Connection Claim

Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service.  38 U.S.C.A. §§ 1110, 1131 (West 2014).  Generally, the evidence 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).  Under section 3.310(a) of VA regulations, service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury.  38 C.F.R. § 3.310(a) (2016).  

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant.  38 C.F.R. § 3.102 (2016).

The Veteran contends that he has acquired psychiatric disorder as a result of active service.  He also contends that the disorder developed secondary to his service-connected degenerative disc disease of the lumbar spine and lateral epicondylitis with ankylosis, left elbow, as a residual of a left olecranon process fracture.  

Service treatment records establish that the Veteran sustained injuries when he fell over a fence while on maneuvers in December 1973.  Records show he underwent open reduction and wire fixation for a left olecranon fracture.  An August 1975 separation examination revealed a normal clinical psychiatric evaluation.  

SSA records include private treatment report dated in September 1997 noting diagnoses of anxiety and a herniated disc at L5-S1.  A May 2006 report noted an Axis I diagnosis of major depression affective disorder and Axis III stressors of back problems and hypertension.  A September 2007 mental health assessment noted the Veteran reported problems with depression that began after he experienced physical problems due to a work-related back injury with treatment for depression beginning in 2001.

An August 2015 VA examination included a diagnosis of unspecified depressive disorder due to multiple losses of family members.  It was the examiner's opinion that the disorder was not incurred in or caused by the left elbow injury the Veteran sustained during active service.  The rationale for the opinion was that he did not receive regular psychiatric therapy following his left elbow injury, that the onset of his depressive disorder was in 1998 following the death of his mother with an absence of temporal proximity, and that the content of his current thinking pertained to the loss of family members and not to issues from military service.

A May 2016 VA examination report provided a diagnosis of unspecified depressive disorder.  The examiner found the disorder was not directly related to service and that it was not the result of the Veteran's elbow and back disorders.  It was the examiner's impression based upon his previous examination and a review of the record that the Veteran's depression had started in 1998 shortly after his mother's death due to cancer.  It was noted to have continued since than as the Veteran suffered three other major losses of close family members, including a sister in 2003, a brother in 2004, and a son in 2014.  

A June 2017 private psychological evaluation summarized the pertinent evidence of record, including back and left elbow injuries the Veteran sustained during service and re-injury to the back after service.  Behavioral observations were noted and the results of psychological tests were summarized.  It was the examiner's impression that the Veteran had a chronic depressive disorder of moderate severity and that it was more likely than not that the disorder was proximately due to his service-connected serious injuries to the back and elbow and their resultant chronic pain.  A diagnosis of persistent depressive disorder was provided.  As additional rationale for the opinion the examiner cited treatment records demonstrating diagnoses of depression since 1997.

Based upon the available record, the Board finds the evidence demonstrates the Veteran's persistent depressive disorder is proximately due to his service-connected degenerative disc disease of the lumbar spine and lateral epicondylitis with ankylosis, left elbow, as a residual of a left olecranon process fracture.  The June 2017 private medical opinion is shown to have been based upon a substantially accurate review of the evidence of record and to have included adequate rationale for the provided etiology opinion.  It is also significant that the August 2015 and May 2016 VA examiner did not discuss the September 1997 private treatment report diagnosis of anxiety nor the September 2007 report noting psychiatric treatment since 2001 subsequent to a work-related back injury.  The June 2017 private medical opinion as to etiology is persuasive.  As such, service connection for persistent depressive disorder is granted.

Increased Rating Claim

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4.  This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition.  Over a period of many years, a veteran's disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition.  It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2016).

The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App.  505 (2007).  

It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2 (2016).  Consideration of factors wholly outside the rating criteria constitutes error as a matter of law.  Massey v. Brown, 7 Vet. App. 204, 207-08 (1994).  Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited.  38 C.F.R. § 4.14 (2016).  

The regulations for the evaluation of skin disabilities were revised effective October 23, 2008.  See 73 Fed. Reg. 54708-54712 (Sept. 23, 2008).  The revised provisions are applicable only to claims received on or after October 23, 2008; however, a Veteran who VA rated under diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 before October 23, 2008, can request review irrespective of whether the disability has increased since the last review.  In no case will any such award be effective before October 23, 2008. 

Prior to October 23, 2008, under Diagnostic Code 7804, a 10 percent evaluation was assigned for superficial scars that are painful on examination.  Note (1) indicated that a superficial scar was one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7804 (prior to October 23, 2008).

Under the revised regulations effective October 23, 2008, Diagnostic Code 7801 provides that scars other than on the head, face, or neck, that are deep or cause limited motion warrant a 10 percent evaluation for an area or areas exceeding 6 square inches (39 sq. cm.) and a 20 percent evaluation for an area or areas exceeding 12 square inches (77 sq. cm.).  Note (1) indicates that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk will be separately rated and combined.  Note (2) indicates that a deep scar is one associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7801 (effective October 23, 2008).

Under Diagnostic Code 7804 one or two scars that are unstable or painful warrant a 10 percent evaluation.  Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  Note (2) provides that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable or painful scars.  Note (3) provides that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable.  For a 20 percent rating, there must be three or four scars, and for a 30 percent rating, there must be five or more scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804 (effective October 23, 2008).

Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 and any disabling effects not considered in a rating provided under Diagnostic Code 7800-04 are to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, Diagnostic Code 7805 (effective October 23, 2008).

It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant.  However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence.  38 C.F.R. § 4.3 (2016).

As indicated, service treatment records service show that the Veteran sustained a left elbow injury in December 1973 and underwent open reduction and wire fixation for a left olecranon fracture.  An April 2009 VA examination report noted a four inch surgical scar over the posterior aspect of the elbow area in midline of the nondominant left upper extremity.  It was noted the scar was nontender and nonadherent to the underlying tissue.  There was no evidence of tissue loss.  The Veteran's present claim was received by VA on October 20, 2008.

VA examination in August 2015 revealed a linear left elbow scar that was 11 centimeters in length and .2 centimeters in width.  It was noted the scar was not painful or unstable and did not have a total area equal to or greater than 6 square inches (39 square centimeters).  The examiner noted the scar did not impact the Veteran's ability to work.

Based upon the evidence of record, the Board finds that the Veteran's residuals of a scar, left olecranon process, is a linear four inch scar that is stable, and not painful.  There is no evidence demonstrating a scar that is deep or causes limited motion for an area or areas exceeding 6 square inches (39 square centimeters) nor that the scar is unstable or painful.  The findings of the August 2015 VA examination are persuasive.  Entitlement to a compensable rating must be denied.  

The theory of entitlement to a higher rating under the provisions of 38 C.F.R. § 3.321(b)(1) has not been specifically sought by the Veteran nor reasonably raised by the facts found by the Board.  As such, there is no basis for extraschedular discussion in this case.  See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances).  

TDIU

A total rating for compensation may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war.  It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable.  38 C.F.R. § 4.16(a) (2016).  

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.  38 C.F.R. § 3.340(a) (2016).  A Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19 (2016).

The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough.  A high rating alone is a recognition that the impairment makes it difficult to obtain/keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  

The applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.  Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  TDIU is to be awarded based on the judgment of the rating agency.  Floore v. Shinseki, 26 Vet. App. 376, 381 (2013).

The Veteran contends, in essence, that he is unemployable due to his service-connected disabilities.  In statements and testimony in support of his claim he reported he had last worked full-time in 1988 as a driver.  He reported that he had completed high school.

VA records show that, prior to the Board's present decision, service connection was established for lateral epicondylitis with ankylosis, left elbow, as a residual of a left olecranon process fracture (50 percent from October 20, 2008), for degenerative disc disease of the lumbar spine (10 percent from October 20, 2008, and 20 percent from August 4, 2015), and residuals of a scar, left olecranon process (0 percent from October 20, 2008).  The Board is aware that a rating for his psychiatric disorder has yet to be assigned.  The assigned rating is important.  However, as indicated below, there is sufficient evidence already to decide the claim.  No useful purpose would be fulfilled by delaying adjudication.

SSA records show the Veteran was awarded disability benefits in July 2001 based upon a primary diagnosis of affective/mood disorders and disorders of the back (discogenic and degenerative).  The disability was noted to have begun in October 1999.  It was noted that the evidence showed that despite continuous psychiatric treatment the Veteran continued to need assistance with his day to day activities due to depression.

An August 2015 VA back disorder examination report noted the Veteran could not perform physical work, including bending, climbing, lifting, or carrying anything over 20 pounds.  An August 2015 VA elbow disorders examination report noted he could not perform physical work due to his left elbow disability.

Based upon the evidence of record, the Board finds the Veteran meets the schedular criteria for a TDIU rating.  See 38 C.F.R. § 4.16(a).  His service-connected left elbow and lumbar spine disabilities are orthopedic disorders and are shown to have been incurred in a single accident in December 1973.  The combined 60 percent rating effective from October 20, 2008, is thereby considered to be one disability for TDIU evaluation purposes.  The overall evidence is persuasive that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.  Therefore, entitlement to a TDIU is warranted.


ORDER

Entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected back and left elbow disabilities, is granted.

Entitlement to a rating for residuals of a scar, left olecranon process, is denied.

Entitlement to a TDIU is granted, subject to the regulations governing the payment of monetary awards.


______________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs

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