Citation Nr: 1805111 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 08-22 905 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to a rating in excess of 30 percent for major depressive disorder previously evaluated as insomnia associated with migraine headaches (hereinafter "psychiatric disability"). 2. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected disabilities prior to July 24, 2017. 3. Entitlement to service connection for a lumbar spine disorder. 4. Entitlement to service connection for a right ankle disorder. 5. Entitlement to service connection for bilateral pes planus. 6. Entitlement to service connection for positional vertigo, to include benign paroxysmal vertigo, including as due to an undiagnosed illness. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from May 1984 to February 1987 and January 1991 to October 1991, including in the Southwest Asia Theater of operations during the Persian Gulf War. Between these two periods of service, and following the latter period, he also served in the Army Reserves and National Guard, respectively. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2007 and August 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In September 2008, the Veteran testified at a hearing before a Decision Review Officer (DRO). In February 2012, January 2015, and September 2016, the Board remanded the case for additional evidentiary development. The issues of entitlement to service connection for migraine headaches and tinnitus were granted in a January 2013 VA rating decision. The issues of entitlement to service connection for residuals of cerebrovascular accident, to include obstructive sleep apnea, residuals of cerebrovascular accident, to include insomnia, and ethmoid sinusitis were granted in a June 2017 VA rating decision. These decisions represent a full grant of the benefits sought so they are no longer on appeal before the Board. The remaining issues remanded by the Board in September 2016 have been returned to the Board for further appellate review. Since the issue of entitlement to a higher rating for psychiatric disability was certified to the Board in February 2017, additional evidence relevant to that issue has been obtained and associated with the record. The Veteran's representative waived initial Agency of Original Jurisdiction (AOJ) review in a November 2017 written brief, thus the Board may proceed with appellate review. The issues of entitlement to a TDIU prior to July 24, 2017 and service connection for a lumbar spine disorder, right ankle disorder, bilateral pes planus, and positional vertigo are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT For the entire appeal period, the Veteran's service-connected psychiatric disability has not been manifested by occupational and social impairment with reduced reliability and productivity due to his psychiatric symptomatology. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 30 percent for a psychiatric disability have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9499-9410 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION Neither the Veteran nor his representative have raised any 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). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected psychiatric disability in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In the January 2015 Board decision, service connection for insomnia was granted. In the March 2015 VA rating decision, the AOJ effectuated the grant of service connection for insomnia and assigned a noncompensable (0 percent) rating, effective from February 28, 2007. See 38 C.F.R. § 4.130, Diagnostic Code 9499-9410. On April 28, 2016, the Veteran requested service connection for a psychiatric disability. In the August 2016 VA rating decision, the AOJ recharacterized the service-connected insomnia as major depressive disorder and assigned a 30 percent disability rating, effective from April 28, 2016. Id. The Board considers whether a rating in excess of 30 percent for psychiatric disability is warranted at any time since or within one year prior to the date of claim on April 28, 2016. Pursuant to the General Rating Formula for Mental Disorders, a rating of 30 percent is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A rating of 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once per week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A rating of 70 percent rating is warranted 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 work-like setting); or an inability to establish and maintain effective relationships. Id. A rating of 100 percent, the maximum available, is assigned 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; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The nomenclature employed in the portion of VA's rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes VA implemented usage of the DSM-5, effective August 4, 2014. As this case was initially certified to the Board in February 2017, the DSM-5 is for application in this case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be 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. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Review of the evidentiary record within one year prior to the date of claim on April 28, 2016 includes the following psychiatric symptomatology. Social Security Administration (SSA) records show that pursuant to the Veteran's request for reconsideration of a July 2015 assessment, an October 2015 report concluded there was no new evidence to show worsening of the Veteran's depression. This conclusion was based on the following evidence. The Veteran reported symptoms of insomnia, memory loss, and the inability to complete tasks, concentrate, follow instructions, handle stress, and tolerate changes in his routine; however, he can do some household chores, use public transportation, and go shopping. April 2015 and June 2015 treatment records affirmed the Veteran's diagnosis of major depressive disorder and noted the Veteran demonstrated depressed mood, restricted affect, orientation in two spheres, diminished immediate/short term memory and concentration, obsessive compulsive disorder, yet a good general appearance, cooperation, coherent, good recent/remote memory, judgment, insight, and no suicidal/homicidal ideation or perceptual disturbances. A July 2015 treatment record noted he was alert, oriented, cooperative, reliable, and demonstrated normal speech. VA treatment records dated from August 2015 to April 2016 show that in August 2015 and September 2015 the Veteran was alert, attentive, oriented in time, place, and person, and displayed clear speech. Review of the evidentiary record since the date of claim on April 28, 2016 includes the following psychiatric symptomatology. VA treatment records dated from April 2016 to July 2017 are silent for any psychiatric symptomatology. At the July 2016 VA Disability Benefits Questionnaire (DBQ) examination for mental disorders, the Veteran reported being married for six years and described the relationship as "very good" and retiring two years ago. He noted that he forgets words sometimes and sequences of numbers, has sleep difficulties, has panic attacks at night and wakes up scared, he does not drive, he checks doors many times at night, and has difficulty getting out of bed. The July 2016 VA examiner concluded the Veteran displayed current symptoms of depressed mood and chronic sleep impairment, and the Veteran's psychiatric diagnosis of major depressive disorder was best summarized at the level of "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." In statements associated with the August 2016 notice of disagreement and December 2016 substantive appeal, the Veteran reported his daily life is affected due to memory loss, specifically keeping track of medications and/or paying utility bills, and due to sleep impairment impacting his driving abilities. At the November 2017 VA DBQ examination for mental disorders, the Veteran reported retirement from the National Guard in 2015 and displayed current symptoms of depressed mood, chronic sleep impairment, and disturbances of motivation and mood. Upon observation, he demonstrated proper behavior, appropriate dress, adequate hygiene, cooperation, spontaneous and established eye contact, alert, coherent and logical thought process, relaxed mood, broad and appropriate affect, preserved memory, normal abstraction capacity, good judgment, adequate insight, and orientation in person, place, and time. There were no findings of psychomotor retardation or agitation, looseness of association, sign of disorganized speech, delusions, hallucinations, phobias, obsession, panic attacks, suicidal ideas, or changes in pharmacological treatment for the service-connected psychiatric disability. The November 2017 VA examiner concluded "a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication." The examiner further noted the Veteran's mental condition is stable and not severe enough to interfere with his marital relation, daily activities, family responsibility, financial debts, and social functioning. After review of the pertinent evidence of record, the Board finds the Veteran's service-connected psychiatric disability has not been manifested by occupational and social impairment with reduced reliability and productivity due to his psychiatric symptomatology. As discussed above, the Veteran's psychiatric disability has been manifested by depressed mood; sleep impairment; memory loss; inability to complete tasks, concentrate, follow instructions, handle stress, and tolerate changes in his routine; restricted affect; and self-reported obsessive compulsive behavior and panic attacks. Nevertheless, his overall psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate more severe occupational and social impairment at any time during the appeal period to warrant a higher rating. In fact, while being unemployed, he has demonstrated a positive marital relationship, ability to complete some household chores, orientation, good general appearance and hygiene, normal speech, and good judgment and insight. The Veteran also consistently did not report or demonstrate suicidal plans and ideation, homicidal plans and ideation, hallucinations, or delusions. The frequency and severity of his symptoms are not such that occupational and social impairment with reduced reliability and productivity is produced. As such, a rating in excess of 30 percent is not warranted at any time during the appeal period, to include within one year prior to the date of claim on April 28, 2016. See 38 C.F.R. § 4.130, Diagnostic Code 9499-9410. The Board is aware that the symptoms listed under the next-higher ratings of 50, 70, and100 percent are essentially examples of the type and degree of symptoms for that rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Moreover, entitlement to such evaluations requires sufficient symptoms of the requirements, or others of similar severity, frequency, or duration, that cause the specific type of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 117-18. In this case, the Board has considered the next higher ratings for the appeal period but finds that they are rated appropriately. The signs and symptoms manifested are contemplated by the currently assigned rating of 30 percent as they do not manifest with the severity required for a higher rating. The Board has also considered the possibility of staged ratings and finds that the scheduler rating for the service-connected disability on appeal has been in effect for appropriate period on appeal. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. ORDER A rating in excess of 30 percent for a psychiatric disability is denied. REMAND During the appeal period for a higher rating for psychiatric disability, the Veteran submitted a VA Form 21-8940 requesting entitlement to a TDIU in July 2017. In a November 2017 VA rating decision, the RO granted the claim for a TDIU, effective from the date of claim on July 24, 2017. Nevertheless, review of the record reveals the Veteran reported his service-connected psychiatric disability prevents him from securing or following any substantially gainful occupation and he last worked full time in 2015. As a result, The Board finds that the issue of a TDIU prior to July 24, 2017 has been raised by the record in connection with the claim on appeal for entitlement to a higher rating for psychiatric disability (date of claim on April 28, 2016). See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the AOJ should develop a claim for a TDIU prior to July 24, 2017 in accordance with Rice. Next, pursuant to the September 2016 Board remand, the AOJ was instructed, in part, to readjudicate the claims on appeal and if any of the benefits sought remain denied, issue a supplemental statement of the case (SSOC). Review of the evidentiary record shows that the remaining issues on appeal, for entitlement to service connection for lumbar spine disorder, right ankle disorder, bilateral pes planus, and positional vertigo, were not readjudicated in a SSOC, as requested in the September 2016 Board remand. The Veteran is entitled to substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Accordingly, the case is REMANDED for the following actions: 1. Provide the Veteran and his representative with notice concerning how to substantiate the claim for a TDIU prior to July 24, 2017 (from April 28, 2016 to July 23, 2017). 2. Then, readjudicate the claims. If any decision is adverse to the Veteran, issue a SSOC and allow the applicable time for response. Then, return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (West 2014). ______________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs