Citation Nr: 18160422
Decision Date: 12/26/18	Archive Date: 12/26/18

DOCKET NO. 14-24 414
DATE:	December 26, 2018
ORDER
The reduction in the disability rating for service-connected residuals of stress fracture, left foot, from 10 percent to noncompensable, effective August 20, 2018, was improper, and the 10 percent evaluation is restored.
Entitlement to an initial rating in excess of 70 percent for depressive disorder, unspecified (previously evaluated as major depressive disorder with generalized anxiety disorder), associated with residuals of a left foot stress fracture, is denied.
REMANDED
Entitlement to service connection for a sleep disorder to include sleep apnea, and to include as secondary to the service connected depressive disorder or as secondary to the service connected residuals of stress fracture in the left foot is remanded.
Entitlement to an initial rating in excess of 10 percent for residuals of stress fracture, left foot, is remanded.
FINDINGS OF FACT
1. The VA examination report on which the reduction in disability rating for the left foot disability was based did not provide an adequate basis for the reduction. 
2. The Veteran’s unspecified depressive disorder is manifested by an occupational and social impairment with deficiencies in most areas. 
CONCLUSIONS OF LAW
1. The criteria for restoration of a 10 percent disability rating for a left foot disability from August 20, 2018 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.344(c) (2017). 
2. The criteria for a rating in excess of 70 percent for an unspecified depressive disorder are not met. 38 U.S.C. §§ 1155, 5107, 5110(b) (2012); 38 C.F.R. §§ 3.102, 3.400, 4.7, 4.130, Diagnostic Code 9435 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served honorably in the United States Army from May 2010 to April 2011. 
Increased Rating
1. Propriety of the reduction of the evaluation of service-connected residuals of stress fracture, left foot, from 10 percent to noncompensable
A February 2012 rating decision granted entitlement to service connection for residuals of a stress fracture in the left foot and assigned a 10 percent disability rating from April 22, 2011. The Veteran filed a notice of disagreement in October 2012 alleging her residuals of a left foot fracture warranted a rating in excess of 10 percent. In February 2016, the Board remanded the claim in order to obtain a medical opinion. In October 2018, the Regional Office reduced the Veteran’s 10 percent rating for residuals of a left foot stress fracture to noncompensable on the basis of an August 2018 VA examination effective August 20, 2018.
The United States Court of Appeals for Veterans Claims (Court) stated in Greyzck v. West, 12 Vet. App. 288 (1999) that “[t]he Court has consistently held that where a [VA regional office (RO)] reduces a veteran’s disability rating without following the applicable VA regulations, the reduction is void ab initio.” The Court cited Schafrath v. Derwinski, 1 Vet. App. 589 (1991), which stated that “the Board’s decision to reduce the veteran’s rating was void ab initio since it was made without regard to numerous operative regulations. Hence, he should not be subject to the effects of an unlawful rating reduction and that reduction must be vacated and the prior rating restored.” One regulation discussed by the Court was 38 C.F.R. § 4.40, which discusses functional loss in regard to disabilities of the musculoskeletal system.
38 C.F.R. § 4.2 states that “[i]f a diagnosis is not supported by the findings on the examination report or if the report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes.”
The Court has also stated that “the RO and Board are required in any rating-reduction case to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations.” See Brown v. Brown, 5 Vet. App. 413 (1993). The Court in that decision referenced 38 C.F.R. § 4.13, which states that “[w]hen any change in evaluation is to be made, the rating agency should assure itself that there has been an actual change in the conditions, for better or worse, and not merely a difference in thoroughness of the examination or in use of descriptive terms.”
The Court held in Correia v. McDonald, 28 Vet. App. 158 (2016) that “to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of” 38 C.F.R. § 4.59. The referenced portion of 38 C.F.R. § 4.59 states that “[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint.”
In Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner.
As noted, the October 2018 rating decision that reduced the Veteran’s disability rating referenced that such reduction was effective the date of VA examination that documented improvement. Upon review of the VA examination that such reduction was based on, the Board finds that the examination was inadequate for rating purposes. As such, this examination report cannot be the basis for a rating reduction. The reduction in disability rating is therefore void ab initio and the prior 10 percent disability rating must be restored.
An August 2018 Foot Conditions Disability Benefit Questionnaire (DBQ) was completed. No range of motion (ROM) testing of the foot was reported. The DBQ also did not address the Veteran’s reports of flare ups as directed in the February 2016 Board Remand and noted upon VA examination in May 2014. As such, the examination did not comply with the Court’s holdings in Correia and Sharp, and it is therefore inadequate. 
In sum, the Board finds that the VA examination report on which the reduction in disability rating for the residuals of a left foot stress fracture was based did not provide an adequate basis for the reduction. As such, the Board concludes that the criteria for restoration of a 10 percent disability rating for residuals of a left foot stress fracture from August 20, 2018 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 3.344(c). The Veteran’s claim is therefore granted.
2. Entitlement to an initial rating in excess of 70 percent for depressive disorder, unspecified (previously evaluated as major depressive disorder with generalized anxiety disorder), associated with residuals of a left foot stress fracture 
The Veteran is seeking a higher initial disability rating for the Veteran’s service-connected depressive disorder.
The Veteran’s depressive disorder is rated as 70 percent disabling from October 12, 2012 pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435. This diagnostic code provides that depressive disorder, is to be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders.  
Under the formula, a 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships.
A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.
The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002).
In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under   § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that     “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.”
To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran’s service-connected disability. See Mittleider v. West, 11 Vet. App. 181 (1998).
Turning to the evidence, the record reflects the Veteran received mental health treatment from the VAMC throughout the period at issue for depressive disorder.
The Veteran was afforded a VA examination in December 2012. Psychological testing was performed, but found to be invalid due to exaggerated responses. The Veteran showed symptoms of a depressed mood, anxiety, panic attacks that occur weekly or less, and disturbances of motivation and mood. Upon mental status examination the Veteran was noted to be clean and neatly groomed, but mildly depressed. Speech rate, thought content, and tangentiality were unremarkable. There was no evidence of suicidal or homicidal ideation, hallucinations, or delusions. The examiner opined the Veteran’s symptoms resulted in an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.
In January 2013, a VA examiner found the Veteran met the criteria for a diagnosis of major depressive disorder. The examiner noted the Veteran appeared to have limited coping skills. 
In May 2013, a private psychologist, Dr. A.F., opined the Veteran’s depressive disorder should be diagnosed as a mood disorder due to medical condition, with major depressive features. The examiner found the mood disorder had a significant negative impact on occupational and social functioning. 
In August 2013, Dr. A.F. provided a mental disorders disability benefits questionnaire. Dr. A.F. opined the Veteran’s mental impairment resulted in an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Dr. A.F. noted the Veteran showed symptoms of a depressed mood, anxiety, panic attacks occurring weekly or less, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and an intermittent inability to perform activities of daily living. 
The Veteran was afforded a VA examination in May 2014. The examiner diagnosed the Veteran with an other unspecified depressive disorder and polysubstance use disorder in partial remission. The examiner noted the Veteran had symptoms of a depressed mood, anxiety, and disturbances of motivation and mood. The Veteran was found to be pleasant, have a euthymic affect, congruent mood, no psychomotor abnormalities, and normal thought process. The examiner concluded the Veteran’s mental impairments resulted in and 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, or; symptoms controlled by medication.
The Veteran was afforded a VA examination in April 2016. The examiner diagnosed the Veteran with major depressive disorder and cannabis use disorder in sustained remission. The Veteran endorsed symptoms of a depressed mood, anxiety, chronic sleep impairment, circumstantial, circumlocutory or stereotyped speech, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. The examiner found the Veteran’s major depressive disorder was moderately to severely impacting her occupational and social functioning. The examiner concluded the Veteran’s mental impairments resulted in an occupational and social impairment with reduced reliability and productivity. 
The Veteran was afforded a VA examination in March 2018. The Veteran was diagnosed with major depressive disorder and generalized anxiety disorder. The examiner found the two diagnoses were independent from each other, but resulted from the same etiology. The examiner found the symptoms of each disorder are similar and overlap significantly. The Veteran endorsed symptoms of a depressed mood, anxiety, panic attacks that occur weekly or less, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and an inability to establish and maintain effective relationships. The examiner concluded the Veteran’s mental impairments resulted in an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation.
The Veteran was afforded a VA examination in August 2018. The examiner diagnosed the Veteran with an unspecified depressive disorder. The Veteran endorsed symptoms of a depressed mood, anxiety, chronic sleep impairment, flattened affect, and disturbances of motivation and mood. The examiner noted the Veteran appeared somewhat remote, depressed, and never smiled; however, she also exhibited good social graces and consideration. The examiner concluded the Veteran’s depressive disorder resulted in an occupational and social impairment with reduced reliability and productivity. 
The examinations and treatment records indicate the Veteran’s unspecified depressive disorder is consistent with a 70 percent evaluation. The Veteran showed symptoms of impaired impulse control and an inability to establish and maintain effective relationships.
However, throughout the appellate period, examinations and treatment records do not indicate that the Veteran’s symptoms rise to the severity, frequency, and duration required of a 100 percent rating. For example, at no point in the relevant appellate period was evidence found of persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran demonstrated no issues with activities of daily living and did not show evidence of persistent danger of hurting herself or others. Further, throughout the appellate period treatment records indicated she maintained good insight and judgment. Thus, because the preponderance of the evidence is against a 100 percent disability rating, the benefit-of-the-doubt rule is inapplicable. 
Thus, in light of the evidence of record, the preponderance of the evidence is against awarding a higher, 100 percent, rating. Thus, a 70 percent disability rating for an unspecified depressive disorder is continued. 
REASONS FOR REMAND
Although the Board regrets the delay, remand is required to ensure there is a complete record on which to decide the Veteran’s claims. 
1. Entitlement to service connection for a sleep disorder to include sleep apnea, and to include as secondary to the service connected depressive disorder or as secondary to the service connected residuals of stress fracture in the left foot is remanded.
The Veteran has alleged that her sleep disorder began in service. 
The Veteran was afforded VA examinations in October 2011 and April 2016. Both examiners declined to make a diagnosis of any sleep disorders. In April 2016, the Veteran stated that she does not believe she has sleep apnea, but she had some trouble sleeping when she was first discharged from service due to pain he her left foot in knee. The Veteran reported she continues to experience pain, but the pain does not affect her sleep.
A review of VA medical center (VAMC) treatment records indicate the Veteran has periodically reported issues with sleeping as related to her diagnosis of depressive disorder. See e.g. VAMC records dated October 9, 2013, June 26, 2014, and March 19, 2015
For the foregoing reasons, the Board believes that a medical examination with opinion based on full consideration of the Veteran’s documented medical history and assertions, and supported by clearly stated rationale, would be helpful in resolving the service-connection claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. at 79. The examination should consider if consider if the Veteran has any sleep impairments secondary to either her service connected depressive disorder or her service connected left foot impairment. The examiner must also consider the documented instances of sleep disturbances as noted in the VA medical records.
2. Entitlement to an initial rating in excess of 10 percent for residuals of a left foot fracture. 
The Veteran has alleged that she suffers from flare ups of her left foot condition. Upon examination in May 2014 the Veteran reported that she experienced flare ups which prevented her from exercising. In February 2016, the Board remanded for an additional VA examination in order to attempt to conduct an examination during a flare up. The Veteran was seen for an updated VA examination in April 2018, during which the examiner did not find any evidence of flare ups and did not make a statement regarding any potential functional loss due to flare ups.
As noted above, in Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the Court held that when a VA examiner is asked to opine as to additional functional loss during flare-ups of a musculoskeletal disability, and the examiner states that he or she is unable to offer such an opinion without resorting to speculation, such opinion must be based on all procurable and assembled medical evidence, to include eliciting relevant information from the veteran as to the flare-i.e. the frequency, duration, characteristics, severity, or functional loss, and such opinion cannot be based on the insufficient knowledge of the specific examiner.
Accordingly, the VA examinations of record do not adequately address the Veteran’s reports of flare-ups as required under Sharp. Therefore, remand is required for a new VA examination of the Veteran’s service-connected residuals of the left foot fracture. 
The appeals are REMANDED for the following actions:
1. Schedule the Veteran for an appropriate VA examination to determine the nature, extent, onset, and etiology of the Veteran’s sleep disorder. The claims folder should be made available and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. The examiner is requested to provide the following information:
(a.) The examiner should identify any currently diagnosed sleep disorders.
(b.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s sleep disorder is due to or otherwise causally or etiologically related to her military service. 
(c.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s sleep disorder is due to or aggravated by her service connected depressive disorder. In this regard, the examiner should note that a rationale is required for both causation and aggravation.
(d.) The examiner should state whether it is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran’s sleep disorder is due to or aggravated by her service connected residuals of a left foot fracture. In this regard, the examiner should note that a rationale is required for both causation and aggravation.
A fully articulated medical rationale for any opinion expressed must be set forth in the medical report. The consideration given to the VAMC records documenting issues with sleep must be clearly stated. See e.g. VAMC records dated October 9, 2013, June 26, 2014, and March 19, 2015
(The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.)
2. The Veteran should be scheduled for a VA examination with appropriate examiner in order to determine the nature and severity of her service-connected residuals of a left foot fracture. The claims folder must be made available to the examiner for review in connection with the examination. The examination report must reflect that such a review was conducted. 
The examiner should identify any symptoms that the Veteran currently manifests or has manifested that are attributable to her service-connected residuals of a left foot fracture. All appropriate testing, including range of motion, should be performed. 
The examiner is asked to specifically address the Veteran’s reports of flare-ups during the May 2014 VA examination.
The examiner is asked to describe whether pain significantly limits functional ability during flare-ups, and if so, the examiner must estimate range of motion during flares. IF THE EXAMINATION DOES NOT TAKE PLACE DURING A FLARE, THE EXAMINER MUST GLEAN INFORMATION REGARDING THE FLARES’ SEVERITY, FREQUENCY, DURATION, AND FUNCTIONAL LOSS MANIFESTATIONS FROM THE VETERAN, MEDICAL RECORDS, AND OTHER AVAILABLE SOURCES. EFFORTS TO OBTAIN SUCH INFORMATION MUST BE DOCUMENTED. If there is no pain and/or no limitation of function, such facts must be noted in the report.
The examinations should also record the results of range of motion testing for pain on BOTH active and passive motion AND in weight-bearing and nonweight-bearing. 
 
A. S. CARACCIOLO
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	Laura A. Crawford, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

For More Information on Veterans Disability Compensation Benefits! Visit: DisableVeteran.org ~ A Non-Profit Non Governmental Agency


Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.