Citation Nr: 18141006 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 14-20 692A DATE: October 9, 2018 ORDER Evaluation of depressive disorder in excess of 30 percent disabling is denied. REMANDED Evaluation of left knee degenerative arthritis, which is currently evaluated as 10 percent disabling, is remanded. Evaluation of right knee degenerative arthritis, which is currently evaluated as 10 percent disabling, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s depressive disorder is characterized by depressive mood, mild memory loss, chronic sleep impairment and occasional irritability. CONCLUSION OF LAW The criteria for an evaluation in excess of 30 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1961 to September 1963. This matter came before the Board of Veterans Appeals (Board) on appeal from an April 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Board remanded this matter for further evidentiary development. Evaluation of depressive disorder, currently evaluated as 30 percent disabling The Veteran contends he is entitled to a higher rating for depressive disorder. Upon review of the evidence of record, the Board concludes that a rating in excess of 30 percent for depression is not warranted. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability’s severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Ratings are assigned according to the manifestation of symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). See also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those in the non-exhaustive lists). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran has been rated under Diagnostic Code (DC) 9434 for major depressive disorder, which is evaluated under the General Rating Formula for Mental Disorders. Under this DC, the criteria for a 30 percent rating are 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). The criteria for a 50 percent rating are 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 a 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; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are 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); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 of 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. 38 C.F.R. § 4.130, DC 9411. The Veteran’s VA treatment records document treatment for depression. May 2010 VA treatment records note that the Veteran had been depressed for past year, and could not get a good night’s sleep. The Veteran reported feeling depression 50 percent of the time and reported increased irritability. He reported some anhedonia and stated that he feels on edge a fair amount. June 2010 VA records note that the Veteran felt less depressed than in the past and was less irritated, with some improvement in his sleep. He expressed frustration that he could not do activities he used to be able to do. May 2017 VA treatment records note long term sleep trouble, occasional irritability and forgetfulness. June 2017 VA treatment records note the Veteran’s report that his mood was “pretty decent” and his sleep had improved somewhat. He also reported some forgetfulness, and irritability but denied panic attacks, delusions and hallucinations. He was noted to be well groomed, with normal speech, a full range of affect and logical thoughts. An August 2010 VA examination noted symptoms of depression, mild memory impairment, a lack of motivation, low energy, anhedonia and chronic sleep problems. The examiner noted that the Veteran stayed home due to pain and depression and was somewhat socially withdrawn, though he reported being active in church and occasionally talking on the phone. The examiner noted that the Veteran was alert and oriented, with appropriate appearance and hygiene and normal speech and concentration. The Veteran denied panic attacks, hallucinations or delusions, and suicidal and homicidal ideation. The examiner found that the Veteran had difficulty establishing effective work and social relationships but was generally functioning satisfactorily with normal self-care and conversation. The examiner also noted that the Veteran reported good relationships with his siblings, children and grandchildren and that he was active in church and kept in touch with other people on the phone. The examiner found that the Veteran had mild memory problems, but noted that he had no problems understanding simple or complex commands. An April 2011 VA examination found that the Veteran’s depression had improvement somewhat due to medication, but that he reported continuing symptoms of sleep disruption, mild depressive symptoms and mild irritability. The examiner found that the Veteran did not have symptoms of flattened affect, panic attacks, problems with complex commands or impairment of short or long-term memory. Based on these symptoms, the examiner found that the Veteran had occupational and social impairment with mild or transient symptoms. A March 2018 VA examination found that the Veteran’s depression caused occupational and social impairment with occasional decrease in efficiency and intermittent ability to perform occupational tasks. The examiner noted that the Veteran felt his depression had worsened. The examiner found symptoms of depression and chronic sleep impairment. The examiner noted that the Veteran drove himself and was well groomed, with no signs of self-neglect. He was noted to be alert, oriented and cooperative, with normal affect and speech, logical thought and normal attention and concentration. The Veteran denied suicidal ideation. The examiner found that the Veteran’s depression impaired his energy level and ability to sleep. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran’s statements, in-person examinations and the examiners’ observations, the Board finds them entitled to significant probative weight with respect to the severity of the Veteran’s depression. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302–05 (2008). The Board finds that the evidence of record indicates that during the entire period on appeal, the Veteran’s depression has been characterized by depressive mood, irritability, mild memory impairment and chronic sleep impairment. His VA treatment records consistently note depressed mood, forgetfulness, occasional irritability and sleep disturbance as well as low energy. The VA examiners have also consistently found these symptoms throughout the period on appeal. The Board notes that symptoms of depression, mild memory loss, irritability and chronic sleep impairment are already contemplated by the 30 percent rating currently assigned. Upon review of the above, the Board finds that the medical evidence of record does not support the conclusion that the Veteran’s overall disability picture more nearly approximates the frequency, severity, or duration of psychiatric symptoms required for a 50 percent rating. Indeed, the Veteran has consistently denied panic attacks. His providers consistently note that his speech is normal, his thinking is logical, his affect is normal or depressed rather than flattened, and his attention and concentration are normal. The August 2010 VA examiner specifically noted that the Veteran could follow both simple and complex commands. The Board further notes that the Veteran has also consistently denied suicidal and homicidal ideation, hallucinations and delusions. The Board acknowledges that the August 2010 examiner did find that the Veteran had difficulty establishing effective work and social relationships, but noted that he was generally functioning satisfactorily with normal self-care and conversation, in accordance with the criteria for a 30 percent rating. The examiner also noted that the Veteran was active in church and spoke with others on the phone, and noted his good relationships with his siblings, children and grandchildren. Moreover, the April 2011 and March 2018 examiners found no difficulty in establishing and maintaining effective work and social relationships. The Board therefore finds that the preponderance of the evidence is against an evaluation above 30 percent. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran’s disability in his favor. The Board finds that the Veteran’s overall picture more nearly approximates that of a 30 percent disability rating, and his symptoms do not raise to the level of those contemplated by a 0 percent rating. Accordingly, a rating in excess of 30 percent is therefore not warranted. REASONS FOR REMAND 1. Evaluation of left knee degenerative arthritis, which is currently evaluated as 10 percent disabling is remanded. 2. Evaluation of right knee degenerative arthritis, which is currently evaluated as 10 percent disabling is remanded. The December 2017 Board remand instructed that when pain was observed on range of motion testing, the degree of motion at which pain began should be noted. A VA knee examination was provided in March 2018. The examiner noted pain on non-weight bearing during left knee testing, but did not note the point during range of motion at which pain began. Remand for a new knee examination that complies with the remand directives is therefore required. Stegall v. West, 11 Vet. App. 268 (1998). 3. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the issue of an increased ratings for the Veteran’s knee disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from November 2017 to the Present. 2. Schedule the Veteran for an appropriate VA examination to determine the current nature and severity of his knee disabilities. The claim file should be made available to and reviewed by the examiner and the examination report should state a review of the file was completed. All necessary tests should be performed and all findings should be reported in detail. The examiner should identify all knee pathology found to be present. The examiner should conduct all indicated tests and studies, to include range of motion studies. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. If pain is noted, the point during range of motion at which pain starts must be clearly indicated. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner should also provide an opinion regarding the functional impact of the Veteran’s knee disabilities upon his ability to work. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his right knee disability on employment. The examiner should identify all limitations or functional impairment caused solely by the Veteran’s knee disabilities. 3. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Arnold, Associate Counsel