PARALYSIS OF THE SCIATIC NERVE

Summary

The veteran, who served in the USMC from May 2001 to May 2005, appeals the denial of increased disability ratings for radiculopathy of the right lower extremity (RLE) and a residual scar associated with intervertebral disc syndrome (IVDS). The veteran also appeals the denial of earlier effective dates for service connection for IVDS and RLE, and the dismissal of a TDIU claim as moot. The Board granted a 100 percent disability rating for unspecified depressive disorder with alcohol use disorder, finding total occupational and social impairment based on symptoms including suicidal ideation, social isolation, and difficulty maintaining relationships. For radiculopathy, the Board found the evidence did not support a rating higher than 10 percent prior to June 20, 2022, and not higher than 20 percent thereafter, citing mild to moderate symptoms and normal muscle strength and sensory examinations. The scar claim was denied as noncompensable, with examinations showing it was not painful, unstable, or limiting function. The Board denied earlier effective dates for IVDS and RLE, finding the October 2005 rating decision denying service connection for a back disability was final, and the veteran's subsequent claims were not filed until March 2013. The TDIU claim was dismissed as moot because the veteran was already awarded a 100 percent rating for his depressive disorder. The Board remanded the IVDS claim for a new spine examination to detail the current severity and impact on work-related functions.

Rationale

February 2014, June 2017, September 2018, August 2020 VA exams showed mild symptoms; No constant pain, intermittent pain, muscle atrophy, or trophic changes noted in earlier exams; Normal muscle strength and sensory examinations

Full Decision Text

Citation Nr: 23009974
Decision Date: 02/16/23	Archive Date: 02/16/23

DOCKET NO. 17-46 435
DATE: February 16, 2023

ORDER

Entitlement to a disability rating in excess of 10 percent prior to June 20, 2022, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity (RLE) is denied.

Entitlement to a compensable disability rating for residual scar associated with intervertebral disc syndrome is denied.

Entitlement to a 100 percent disability rating for unspecified depressive disorder with alcohol use disorder is granted.

Entitlement to an effective date earlier than March 19, 2013 for the grant of service connection for intervertebral disc syndrome is denied. 

Entitlement to an effective date earlier than March 19, 2013 for the grant of service connection for radiculopathy of the right lower extremity is denied. 

Entitlement to a finding of total disability based on individual unemployability (TDIU) prior to May 7, 2019, is dismissed as moot.

REMANDED

Entitlement to a disability rating in excess of 20 percent for intervertebral disc syndrome (IDVS) is remanded.

FINDINGS OF FACT

1. Prior to June 20, 2022, the Veteran's radiculopathy of the RLE manifested as mild incomplete paralysis. The Veteran did not have moderate incomplete paralysis, muscle atrophy, or complete paralysis.

2. Since June 20, 2022, the Veteran's radiculopathy of the RLE manifested as a moderate incomplete paralysis. The Veteran did not have moderately severe incomplete paralysis, muscle atrophy, or complete paralysis.

3. The Veteran's residuals scar associated with intervertebral disc syndrome is stable, not painful, and does not measure at least 6 square inches (39 sq. cm.), has not limited function.

4. The Veteran's unspecified depressive disorder symptoms are manifested by total occupational and social impairment, suicidal ideation, and a gross inability to form and maintain relationships with others.

5. Service connection for a back disability was most recently denied in a October 2005 rating decision; the Veteran did not properly appeal the decision and it became final. 

6. Since October 2005, the only communication indicating any intent to file a claim for benefits for service connection for a back disability and radiculopathy of the RLE was received March 19, 2013.

7. The Veteran is in receipt of a 100 percent schedular rating for his depressive disorder for the entirety of the appellate period, and so the question of entitlement to TDIU is moot.

CONCLUSIONS OF LAW

1.  The criteria for entitlement to a disability rating in excess of 10 percent prior to June 20, 2022, and in excess of 20 percent thereafter for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520.

2. The criteria for entitlement to a compensable disability rating for residual scar associated with intervertebral disc syndrome have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7802.

3. The criteria for entitlement to an increased rating of 100 percent rating for unspecified depressive disorder with alcohol use disorder have been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.130, Diagnostic Code 9435.

4. The October 2005 rating decision denying service connection for a back disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103.

5. The criteria for entitlement to an effective date earlier than March 19, 2013 for the grant of service connection for intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

6. The criteria for entitlement to an effective date earlier than March 19, 2013 for the grant of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

7. The issue of TDIU
 date earlier than March 19, 2013 for the grant of service connection for intervertebral disc syndrome have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

6. The criteria for entitlement to an effective date earlier than March 19, 2013 for the grant of service connection for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.400.

7. The issue of TDIU prior to May 7, 2019, is moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.101.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran had active duty service with the USMC May 2001 to May 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 and December 2018 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ).

In September 2022, Veteran submitted additional evidence to the Board and waived AOJ consideration of the newly submitted evidence.

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....").

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). 

In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 
 or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994).

When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007).

Radiculopathy RLE

The Veteran's radiculopathy of right lower extremity is rated under Diagnostic Code 8520, which contemplates paralysis of the sciatic nerve. The Veteran has been assigned a 10 percent disability evaluation prior to September 17, 2021, and 20 percent thereafter. 

Under this code, ratings of 10 percent, 20 percent, and 40 percent are assignable for incomplete paralysis, which is mild, moderate, or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Words such as "mild," "moderate," "moderately severe," and "severe" are not defined in the Rating Schedule. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Rather than applying a mechanical formula, VA must evaluate all the evidence in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6.

In February 2014, the Veteran was afforded a VA back examination. The Veteran had moderate paresthesias and/or dysesthesias in his RLE. He did not have constant pain, intermittent pain, or numbness in his RLE. He did not have muscle atrophy. The Veteran had a normal muscle strength testing, reflex examination, and sensory examination. The Veteran had a positive right left raising test.

In June 2017, the Veteran was afforded a VA peripheral nerves examination. The Veteran reported that he stood, sat, or was stationary too long he would get pain in his RLE. He had numbness in his right great toe. He did not have constant pain or intermittent pain in his RLE. He had moderate paresthesias and/or dysesthesias and numbness in his RLE. He had a normal reflex examination, sensory examination, and muscle strength testing. The Veteran did not have muscle atrophy. He did not have any trophic changes. He had a normal gait.  The examiner opined that the Veteran's condition impacted his ability to work. The examiner noted that the Veteran had to be careful with lifting and lifting anything over 50 pounds would exacerbate his condition.

In September 2018, the Veteran was afforded a VA back conditions examination. The Veteran had a normal muscle strength testing, reflex examination, and sensory examination. He did not have muscle atrophy. He had a negative straight leg raising test. The Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. 

On August 2020 back conditions disorder disability benefits questionnaire (DBQ), he reported that he had intermittent episodes of RLE radiculopathy. The Veteran did not have
ait.  The examiner opined that the Veteran's condition impacted his ability to work. The examiner noted that the Veteran had to be careful with lifting and lifting anything over 50 pounds would exacerbate his condition.

In September 2018, the Veteran was afforded a VA back conditions examination. The Veteran had a normal muscle strength testing, reflex examination, and sensory examination. He did not have muscle atrophy. He had a negative straight leg raising test. The Veteran did not have any radicular pain or any other signs or symptoms due to radiculopathy. 

On August 2020 back conditions disorder disability benefits questionnaire (DBQ), he reported that he had intermittent episodes of RLE radiculopathy. The Veteran did not have muscle atrophy. He had a normal muscle strength testing, reflex examination, and sensory examination. He had a positive right straight leg raising test.  The Veteran did not have constant pain in his RLE. He had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his RLE. The examiner indicated that the Veteran had a mild severity of radiculopathy of the RLE.

In June 2022, the Veteran was afforded a peripheral nerves conditions examination. The Veteran reported that he had nerve pains in his leg. The Veteran had sharp, stabbing, and tingling pain. He had less pain when walking, constant pain when stationary. The Veteran had moderate constant pain, paresthesias and/or dysesthesias, and numbness in his RLE. The Veteran did not have intermittent pain in his RLE. He had a normal muscle strength testing and reflex examination. The Veteran had some decreased sensation to light touch in his lower leg/ankle and foot/toes. The Veteran did not have trophic changes. The Veteran had a normal gait.  The examiner indicated that he had moderate incomplete paralysis of the sciatic nerve. The examiner opined that the Veteran's condition impacted his ability to work. The Veteran was limited in prolonged walking, standing, and sitting due to pain.

Prior to June 20, 2022

The Board finds here that a rating in excess of 10 percent prior to June 20, 2022, is not warranted. The February 2014, June 2017, September 2018, and August 2020 VA examination reports showed no more than mild symptoms. The February 2014 examination reported documented that he had had moderate paresthesias and/or dysesthesias in his RLE. He did not have constant pain, intermittent pain, or numbness in his RLE. The June 2017 examination report documented that he did not have constant pain or intermittent pain in his RLE. He had moderate paresthesias and/or dysesthesias and numbness in his RLE. The September 2018 examination report documented that he did not have any radicular pain or any other signs or symptoms due to radiculopathy. The August 2020 examination report documented he did not have constant pain in his RLE. He had mild intermittent pain, paresthesias and/or dysesthesias, and numbness in his RLE. As noted above, the Veteran had normal muscle strength testing and sensory examination. When considering these reports and physical examination, the Board finds that a rating no higher than 10 percent is warranted.

From June 20, 2022

The Board finds that the criteria for a rating in excess of 20 percent from June 20, 2022, are note met. To warrant a higher evaluation, there must be moderately severe radiculopathy. There is neither muscle atrophy nor trophic changes, and his muscle strength testing and reflex examination was normal. The Veteran had some decreased sensation to light touch in his lower leg/ankle and foot/toes. The Board does not doubt the lay reports, but the characterizations are subject to personal interpretation, and the medical evidence is given greater probative weight. Given this, the objective medical findings at examination take on even more importance and probity. The persuasive evidence of record is against the claim, and there is no doubt to be resolved.

Scar

The Veteran's back scar is evaluated as noncompensable pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7802.

Under 38 C.F.R. § 4.118, Diagnostic Code 7801, a 10 percent rating is warranted for a scar not of the head, face, or neck that are deep and nonlinear and has an area or area of at least 6 square inches (30 sq. cm.) but less than 12 square inches (77 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a 10 percent rating is warranted for a
 against the claim, and there is no doubt to be resolved.

Scar

The Veteran's back scar is evaluated as noncompensable pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7802.

Under 38 C.F.R. § 4.118, Diagnostic Code 7801, a 10 percent rating is warranted for a scar not of the head, face, or neck that are deep and nonlinear and has an area or area of at least 6 square inches (30 sq. cm.) but less than 12 square inches (77 sq. cm.). Under 38 C.F.R. § 4.118, Diagnostic Code 7802, a 10 percent rating is warranted for a scar not of the head, face, or neck, that is superficial and nonlinear and have an area or areas of 144 square inches (929 sq. cm.) or greater. Under 38 C.F.R. § 4.118, Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful.

In March 2014, the Veteran was the Veteran was afforded a VA scar examination. The Veteran denied any issues or complaints related to his scar. The Veteran's scar was not painful and unstable. His scar was not due to burns. Scar 1 was 3.5 cm located on his right heel well healed and stabled. Scar 2 was 4cm located on the midline of the low back. The Veteran's scars did not cause a limitation of function. The examiner opined that the Veteran's scars did not impact his ability to work.

In February 2014, the Veteran was afforded a back VA examination. The Veteran had a scar related to his back condition. The Veteran's scar was not painful and/or unstable. His scar was not the total area of all related scar greater than 39 square cm (6 square inches).

In September 2018, the Veteran was afforded a VA back condition examination. The Veteran had a scar related to his lower back condition. The Veteran's scar was not painful or unstable; have a total area equal to or greater than 39 square cm (6 square inches); or are located on the head, face, or neck. His scar was measured as 4cm x 0.2cm.

In August 2020, the Veteran was afforded a VA back condition examination. The Veteran had a scar related to his lower back condition. The Veteran's scar was not painful or unstable; have a total area equal to or greater than 39 square cm (6 square inches); or are located on the head, face, or neck. His scar was measured as 4cm x 0.2cm.

A compensable rating under Code 7805 is not warranted. Competent examiners and indicated that the scar did not cause limitation of motion, nor has the Veteran so alleged. Therefore, as the scar did not have any disabling effects, a compensable rating under Code 7805 is not warranted. The record reflects that the scar is not painful or unstable, covers a total area of less than 39 square centimeters, and does not cause any additional impairment. Accordingly, a compensable disability rating is not warranted for the scar.

Depressive Disorder 

The Veteran's depressive disorder is rated under (Code) Diagnostic Code 9435. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013).

A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is provided for total occupational and social impairment, due to
3).

A 70 percent rating is provided for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships.

A 100 percent rating is provided for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name.

When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id.

However, the factors listed in the rating schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme but should also be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-443 (2002); 38 C.F.R. § 4.126(a).

In April 2014, the Veteran was afforded a VA mental disorder examination. The examiner indicated that the Veteran's symptoms caused an 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 reported that he lived alone. He got along with his mother, stepfather, and sister. The Veteran did not have many friends. The Veteran reported that he was looking for a reason to keep going through life. He indicated that he got frustrated because there was nothing, he could do to make money. He had symptoms of depressed mood, anxiety, and disturbances of motivation and mood. The Veteran reported that his eating and appetite varied. The Veteran had self-esteem issues. The Veteran felt hopeless sporadically. He had problems having trouble getting interested in anything. The Veteran had a significant concern with keeping things neat and clean. However, it was not severe enough to warrant a separate diagnosis. The Veteran was oriented and casually dressed for his evaluation. His speech and motor behaviors were within normal limits. His mood was anxious when he was around people and depressed when he was by himself. The Veteran was also irritable. His affect was congruent with topic. The Veteran denied suicidal ideation and homicidal ideation. His cognition intact and his insight/judgment was fair to good.

On February 2015 private assessment, Dr. HHG noted that the Veteran live alone and kept his struggles to himself. The Veteran was socially isolated and withdrawn. He had few friends and the inability to maintain a job. The Veteran suffered from chronic sleep impairment including insomnia. The Veteran had difficulty establishing and maintaining relationships, disturbances of motivation and mood, difficulty adapting to stressful circumstances including work and near-continuous panic or depression affecting his ability to function effectively. The Veteran's debilitation depression had caused a remarkable decline in his quality of life. The Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive
 ideation. His cognition intact and his insight/judgment was fair to good.

On February 2015 private assessment, Dr. HHG noted that the Veteran live alone and kept his struggles to himself. The Veteran was socially isolated and withdrawn. He had few friends and the inability to maintain a job. The Veteran suffered from chronic sleep impairment including insomnia. The Veteran had difficulty establishing and maintaining relationships, disturbances of motivation and mood, difficulty adapting to stressful circumstances including work and near-continuous panic or depression affecting his ability to function effectively. The Veteran's debilitation depression had caused a remarkable decline in his quality of life. The Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder.

On February 2015 mental DBQ, the Veteran was diagnosed with depressive disorder. The examiner indicated that his symptoms caused an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. He had symptoms of depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or work like setting, and inability to establish and maintain effective relationships. The Veteran was not able to enjoy the simplest activities. The Veteran attention was normal, and his concentration appeared variable. The Veteran complained of increased of trouble with short-term memory. The Veteran struggled with remembering basic information. His speech flow was normal. His thought content was appropriate, and organization was goal directed. His judgement was average. His mood was anxious and nervous. The Veteran's affect was restricted.  The examiner noted that Veteran was vague with his responses, suspicious, and seemed rather paranoid when speaking. The Veteran did not report any hallucinations. 

A March 2019 VA treatment note documented that he was on the high risk list for suicide. 

An April 2019 private treatment note documented that the Veteran was admitted April 05, 2019, to April 10, 2019, for alcohol dependence. 

A June 2019 VA treatment note documented that the Veteran called the suicide hotline. The Veteran reported that he was lonely and had thoughts of suicide. The Veteran reported that his family did not trust him, so he was not around them. The Veteran did not care to stop drinking now. The Veteran indicated that he drinks alcohol to cope with his mental disorder and his pain. 

On October 2019 mental disorder DBQ, noted that his symptoms caused an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, al-though generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran lived alone, and his girlfriend of 4 years ended because of his drinking. The Veteran reported that his license was suspended so he stayed home. The Veteran had been unemployed for the past 2 years. The Veteran quite his job at the pool company due to his back and knee pain. The Veteran had been hospitalized at least 5 times for alcohol detox since his last examination. The Veteran's main concern was anxiety when he was not drinking. The Veteran reported ath he started to drink about 5 years ago. He noted that he would binge drink on the weekends and had a couple of beers at night when he worked. He reported that since quitting his job his drinking amount varied. The Veteran was oriented on all spheres. The Veteran was alert. The veteran was groomed, pleasant, and cooperative. The Veteran's mood euthymic and affect was mood congruent. There was no disturbance in speech, memory, or thought process. His insight and judgment were fair. The Veteran denied suicidal or homicidal ideation. There were no hallucination or delusion were reported. He had symptoms of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood.

On January 2021 statement, the Veteran wrote that he had severe mental health issues for several years. He indicated that he had trouble with his memory. The Veteran noticed that his short-term memory had gotten worse. He wrote that he could remember something 20 years ago but could forget someone's name he just met. He got frustrated and upset easier as well.  He noted that his frustration got some bad at one point he wanted o kill someone. The Veteran indicated that his symptoms got so bad that he kept to himself and did not be around people. The Veteran indicated that he limited himself to one trip per month to the grocery store. The Veteran was only able to go to restaurants once every 6 months. The Veteran indicated that he did not take showers like he used to. The Veteran drunk alcohol to cope with his depression and pain.

On May 2022 examination, the examiner opined that the Veteran's symptoms caused
-term memory had gotten worse. He wrote that he could remember something 20 years ago but could forget someone's name he just met. He got frustrated and upset easier as well.  He noted that his frustration got some bad at one point he wanted o kill someone. The Veteran indicated that his symptoms got so bad that he kept to himself and did not be around people. The Veteran indicated that he limited himself to one trip per month to the grocery store. The Veteran was only able to go to restaurants once every 6 months. The Veteran indicated that he did not take showers like he used to. The Veteran drunk alcohol to cope with his depression and pain.

On May 2022 examination, the examiner opined that the Veteran's symptoms caused a total occupational and social impairment. The Veteran lived alone. The Veteran indicated that he had friends and girlfriend whom he talks on the phone with. The Veteran reported ath he had not been treated on an inpatient basis in the past 2 years. However, he had at least 8 to 10 hospitalizations for alcohol use disorder and depression. The Veteran reported that he shot and killed a person who kept aggravating him to do things for him. He noted the person charged him in his home when he would not comply with his request. The veteran current was struggling with an alcohol use disorder and continued to drink at this time. He had symptoms of depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, flattened affect, speech intermittently illogical, obscure, or irrelevant, difficulty in understanding complex commands, impaired judgment, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationship, impaired impulse control, such as unprovoked irritability with periods of violence, grossly inappropriate behavior, persistent danger of hurting self or others, neglect of personal appearance and hygiene, and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene.

Accordingly, the Board finds the overall disability picture more closely approximate the symptoms contemplated by a 100 percent disability rating. The Veteran's depressive disorder symptoms resulted in a total occupational and social impairment, due to such symptoms as: of depressed mood, anxiety, disturbances of motivation and mood, chronic sleep impairment, difficulty establishing and maintaining relationships, difficulty adapting to stressful circumstances including work and near-continuous panic or depression affecting his ability to function effectively, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, flattened affect, and suicidal ideation.

The evidence demonstrated that he was very irritable and depressed. Notably, the April 2014 VA examination report documented that the Veteran was irritable. The Veteran had trouble getting interested in anything. On February 2015 private assessment, Dr. HHG noted that the Veteran live alone and kept his struggles to himself. The Veteran was socially isolated and withdrawn. Dr. HHG indicated that the Veteran's debilitation depression had caused a remarkable decline in his quality of life. The Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his depressive disorder. The February 2015 mental disorder DBQ noted that the Veteran complained of short-term memory problems. His mood was anxious and nervous. The Veteran's affect was restricted. VA and private treatment records documented that the Veteran was admitted for alcohol dependence and his mental disorder. The Veteran reported that he felt lonely and suicidal. On January 2021 statement, the Veteran reported that his symptoms were so bad he could not be around people. The Veteran indicated that he limited himself to one trip per month to the grocery store. The Veteran was only able to go to restaurants once every 6 months. Lastly, the May 2022 evaluation documented that his symptoms caused a total occupational and social impairment. Therefore, an increased schedular rating of 100 percent for the Veteran's service-connected depressive disorder is warranted. 

The Board notes that while the Veteran has a single service-connected disability rated 100 percent disabling, he does not have additional conditions ratable as 60 percent disabling or greater. Further, the Veteran has been able to perform his activities of daily living independently.

Earlier Effective Date 

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. §
 have additional conditions ratable as 60 percent disabling or greater. Further, the Veteran has been able to perform his activities of daily living independently.

Earlier Effective Date 

Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5100; 38 C.F.R. § 3.400. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400 (b)(2). Otherwise, it is the date of receipt of claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400.

Effective March 24, 2015, a change in the regulation requires claims to be filed on standard forms, eliminating constructive receipt of claims and informal claims. See 38 C.F.R. §§ 3.1(p), 3.150, 3.155, 3.160(a). Instead of informal claims, the new regulation provides that a claimant may request an application for benefits, upon receipt of which, the Secretary shall notify the claimant of the information necessary to complete the application form or form prescribed by the Secretary. 38 C.F.R. § 3.155(a). The regulation also allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b).

The Veteran contends that he is entitled to an effective date earlier than March 19, 2013 for his service-connected back disability and associated radiculopathy RLE. 

The Veteran first filed his claim in February 2005. His claim was denied in a May 2005 rating decision. In June 2005, additional service treatment records were associated with his claims file. His claim was again denied in an October 2005 rating decision. The AOJ notified the Veteran of the October 2005 rating decision and sent a November 2005 notification letter. The Veteran did not respond to these notices, and there were no further exchanges which may have led the Veteran to believe the appeal remained under consideration or caused any time limit for filing to extend. On March 19, 2013, the Veteran filed an informal claim for service connection for a back disability. Therefore, the Board finds that because the Veteran did not properly file a notice of disagreement or submit any additional medical evidence, the October 2005 rating decision is final. 38 C.F.R. § 3.156(b); See Buie v Shinseki, 24 Vet. App. 242, 251-52 (2011).

The Veteran filed notice of intent to reopen these claims for service connection in March 2013. The regulation governing effective dates for service connection claims is clear - the effective date is the date of receipt of a claim, or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). In other words, while there is evidence of these claimed conditions prior to March 19, 2013 the date of receipt of the Veteran's service connection claims are March 19, 2013. The evidence does not otherwise suggest an intent to reopen his previously denied service connection claim for these conditions prior to this date. The applicable laws and regulations reflect that an effective date earlier than March 19, 2013, is not warranted. 38 U.S.C. § 7104(c); 38 C.F.R. §§ 19.5, 20.101(a)

TDIU

As the Veteran has been granted a schedular 100 percent rating for the entire period on appeal based solely on his depressive disorder, the issue of TDIU is moot and dismissed. The regulations provide for such a benefit only "where the schedular rating is less than total." 38 C.F.R. § 4.16(a).

REASONS FOR REMAND

On January 2021 statement, the Veteran wrote that he struggled with back and leg pain. He indicated that he had pain walking and prolonged standing. He noted that sitting was more uncomfortable than standing. He wrote that his sleep was terrible, and he had to turn every 30 minutes, or his pain would get worse. He wrote that he had to rotate his back during the day. He noted that he could not lift more than 25 pounds. He indicated that he had trouble lifting and carrying things. The Veteran
DIU is moot and dismissed. The regulations provide for such a benefit only "where the schedular rating is less than total." 38 C.F.R. § 4.16(a).

REASONS FOR REMAND

On January 2021 statement, the Veteran wrote that he struggled with back and leg pain. He indicated that he had pain walking and prolonged standing. He noted that sitting was more uncomfortable than standing. He wrote that his sleep was terrible, and he had to turn every 30 minutes, or his pain would get worse. He wrote that he had to rotate his back during the day. He noted that he could not lift more than 25 pounds. He indicated that he had trouble lifting and carrying things. The Veteran had to crack his back every hour. The file reflects indications of worsening back problems since the most recent VA examination. Updated findings are required.

The matters are REMANDED for the following action:

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1. Schedule the Veteran for a VA spine examination. The examiner should describe in detail the current severity of service-connected back disability. The examiner must comment on the impact of the back disability on the Veteran's ability to function in work-related tasks (e.g., sitting, standing, walking, bending, stooping, lifting, cognitive functioning, attendance, etc.).

2. Upon completion of the above, readjudicate the remanded issues. If the benefits sought remain denied, the Veteran and his representative should be provided with a supplemental statement of the case. The case should then be returned to the Board for appellate review if otherwise in order.

 

 

A. Yaffe

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Baxter, 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.