Citation Nr: 18141662 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 16-20 361 DATE: October 11, 2018 ORDER An initial disability rating in excess of 50 percent prior to November 3, 2016 for major depressive disorder is denied. An increased disability rating of 100 percent from November 3, 2016 for major depressive disorder is granted, subject to the governing criteria applicable for the payment of monetary benefits. REMANDED The issue of service connection for a right knee disability, secondary to the service-connected chondromalacia patella of the left knee. The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 3, 2016 is remanded. FINDINGS OF FACT 1. Prior to November 3, 2016, the Veteran’s major depressive disorder was manifested by sleep disturbances, depressed mood, anger, affect ranging from labile, flattened to blunted as well as impairment of recent memory. 2. From November 3, 2016, the Veteran’s major depressive disorder was manifested by, in pertinent part, weekly hallucinations. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 50 percent prior to November 3, 2016 for major depressive disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for an increased disability rating of 100 percent from November 3, 2016 for major depressive disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.6, 4.7, 4.27, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the North Carolina Army National Guard, which included a period of active duty from June 24 to August 18, 1981. 1. The issue of entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. The Veteran contends that she is entitled to an initial disability rating in excess of 50 percent for her major depressive disorder. See April 2015 Notice of Disagreement. Preliminarily, the Board notes the applicable DC is 9434 for major depressive disorder, which is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. §§ 4.27, 4.130. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted for occupational and social impairment with reduced reliability and productivity due to symptoms such 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 judgement; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgement, thinking or mood due to symptoms such as: suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure or irrelevant speech; 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); and inability to establish and maintain effective relationships. A 100 percent disability rating is warranted 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; and, memory loss for names of close relatives, own occupation or own name. The Board acknowledges the psychiatric symptoms listed in the rating criteria are not exhaustive, but are examples of typical symptoms for the listed disability rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013); see also Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). As another matter, the Board is cognizant the Veteran was on psychiatric medications throughout the appeal period. While a higher disability rating may not be denied on the basis of the relief provided by medication when those effects are not specifically contemplated by the rating criteria, a review of the claims file produces no medical records demonstrating the severity of her major depressive disorder without the benefit of these psychiatric medications. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). As such, the Board must consider and weigh the entirety of the evidence available. As in this instance, when an initial compensable disability rating is at issue, the evidence to be considered includes the entire appeal period. See Fenderson v. West, 12 Vet. App. 119 (1999). Generally, in assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms of her major depressive disorder. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007), abrogated on other grounds by Walker v. Shinseki, 708 F.3d 1331 (2013). However, as her statements relate to a clinical assessment of occupational or social impairment, the Board is unable to accord them any probative weight because she is not competent to render a medical diagnosis or opinion on such a complex medical question. See Barr, supra; see also Jones v. West, 12 Vet. App. 460, 465 (1999). In that regard, the Board relies on the medical evidence of record. A review of the Veteran’s treatment records discloses that she received treatment through the G.P.C. during the appeal period. These treatment records begin in February 2014. Of note, a February 26, 2014 G.P.C. Treatment Note documented her reports of averaging seven to nine hours per night in sleep; having low energy and little interest in things; and becoming angered and agitated easily. Consequently, Dr. E.W.H. concluded her global assessment of functioning (GAF) score was 45 and opined that she was unable to sustain work relationships and was permanently and totally disabled as well as unemployable. Aside from the February 26, 2014 G.P.C. Treatment Note, the G.P.C. Treatment Notes from 2014 generally show that at all times the Veteran was cooperative, alert and oriented; thought processes was linear and goal-directed; thought content was normal; and her insight and judgment remained intact. She socialized with people at her church. However, she exhibited depressed mood with affect ranging from labile, flattened to blunted. She suffered from sleep disturbances, intermittent nightmares and night sweats, but she denied suffering from any panic attacks or flashbacks. A May 2014 G.P.C. Treatment Note indicated a worsening in depression without further information. Although the G.P.C. Treatment Notes suggests she had issues with anger or short-term memory, no fluctuation in these symptoms is noted. Further, there is no information bearing on the severity of her anger or short-term memory issues. An October 2010 G.P.C. Treatment Note recorded her attention was distractible and appeared to indicate an impairment of her recent memory. With respect to this claim, the Veteran has undergone one VA examination. January 2015 Mental Disorders VA Examination Report. During the examination, the Veteran stated she and her husband have been married for 33 years. They had no problems with their marriage. They had two adult children, with whom she had an excellent relationship. She also reported having a good relationship with her own mother and two brothers. In terms of friends, she relayed that she had a couple of close friends as well as friends through her church. The Veteran averred that she has been suffering from feelings of worthlessness. However, she denied experiencing any suicidal ideation. She had difficulty staying asleep, but she attributed this to chronic pain. She reported increased appetite and weight gain. The Veteran reported that she was no longer working. She stopped working around 2010, on the advice of her doctor due to her service-connected chondromalacia patella of the left knee. The VA examiner observed the Veteran was open and cooperative. She presented dressed casually with good hygiene. She was alert, oriented and attentive. The VA examiner found her thought processes were logical and organized. There was no evidence of past or current auditory or visual hallucinations. Her speech was within normal limits. Based on the findings, the VA examiner determined the relevant symptoms for rating purposes were depressed mood, chronic sleep impairment, and disturbances of motivation and mood. In doing so, the VA examiner indicated not all symptoms reported by the Veteran were included because they were determined to be subclinical in nature. Of note, the VA examiner indicated a test administered showed she endorsed a high frequency of symptoms that were highly atypical and inconsistent with patients with genuine psychiatric disorders. In the end, the VA examiner concluded her overall occupational and social impairment rose to the level of reduced reliability and productivity. The only G.P.C. Treatment Notes from 2015 continued to document the Veteran suffered from sleep disturbances and weekly night sweats. April 2015 G.P.C. Treatment Note. By then, she no longer experienced any nightmares. She continued to deny suffering from any panic attacks, flashbacks, or audio or visual hallucinations. She continued to present as cooperative, alert and oriented. Her thought processes remained linear and goal-directed; thought content remained normal; and insight and judgment remained intact. There was no change in her anger, depression or short-term memory. Significantly, the G.P.C. treatment provider found her mood was euthymic, affect was even and her attention was intact. A month later, during a mental health screening, a VA psychiatrist noted the Veteran appeared for the appointment dressed and groomed appropriately. May 2015 VA Addendum. She was pleasant, open and forthcoming during the appointment. She was also alert and oriented. Her mood was calm. She demonstrated a normal and reactive affect. Her speech was normal. Her thought processes were logical, linear and goal-directed with appropriate thought content. Her insight and judgment were fair and impulse control was intact. There was no evidence of audio or visual hallucinations. There was also no evidence of suicidal or homicidal ideation. G.P.C. Treatment Notes from 2016 revealed the Veteran continued to experience sleep disturbances with night sweats ranging from occasionally to weekly. She continued to deny suffering from any panic attacks or flashbacks. Her anger and depression were noted to be worse without further information regarding their severity. By November 2016, she began reporting experiencing occasional nightmares. November 3, 2016 G.P.C. Treatment Note. She also began reporting suffering from weekly hallucinations at that time. She exhibited a depressed mood and a flat affect during the November 2016 session. In 2017, the Veteran’s G.P.C. Treatment Notes showed she continued to experience sleep disturbances with night sweats which improved as the year progressed. She no longer experienced nightmares. She continued to deny suffering from any panic attacks or flashbacks. She continued to socialize with people in her church. No change in her anger, depression or short-term memory. Her mood remained depressed and she continued to exhibit a flat affect. Significantly, she continued to report suffering from weekly hallucinations. Specifically, she reported hearing talking in the other room. November 2017 G.P.C. Treatment Note. The last G.P.C. Treatment Note of record comes in April 2018. At that time, it indicated the Veteran continued to experience sleep disturbances with occasional night sweats. April 2018 G.P.C. Treatment Note. While she did not experience nightmares, she had dreams weekly. She continued to deny suffering from any panic attacks or flashbacks. Her anger and short-term memory were improved, but there was no change with her depression. She still socialized with people in her church. Even still, she continued to exhibit a depressed mood with a flat affect. Notably, she continued to report suffering from weekly hallucinations. Nonetheless, she was found to be cooperative, alert and oriented. Her attention remained intact. Her thought processes remained linear and goal-directed with normal thought content. Her insight and judgment also remained intact. In contemplating the above, the Board finds the preponderance of the evidence does not support a disability rating in excess of 50 percent prior to November 3, 2016 of the Veteran’s major depressive disorder. Cf. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3, 4.130, DC 9434 (2017); cf. also Fagan v. Shinseki, 573 F.3d 1282, 1287 (2009). However, from November 3, 2016, the preponderance of the evidence warrants a disability rating of 100 percent. Prior to November 3, 2016, while Dr. E.W.H. indicated the Veteran was totally disabled and unemployable as a result of her major depressive disorder as early as February 2014, the corresponding G.P.C. treatment records and other medical evidence do not support this conclusion. Despite Dr. E.W.H.’s finding that she became angered and agitated easily, there was no finding her impulse control was impaired to such an extent that it was accompanied by periods of violence to support a higher 70 percent disability rating. While G.P.C. Treatment Notes from 2014 suggest some issues with anger, no information is provided with respect to its severity. Although Dr. E.W.H. found the Veteran was unable to sustain work relationships, Dr. E.W.H. did not include any findings or rationale supporting this conclusion. Cf. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008); cf. also Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007), citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994). To the contrary, at the time of her January 2015 VA examination, she reported being taken out of work by a doctor due to her service-connected chondromalacia patella of the left knee in 2010. She did not disclose any issues at work owing to her major depressive disorder. The G.P.C. Treatment Notes for the relevant timeframe show the Veteran’s most significant symptoms were sleep disturbances; depressed mood; affect ranging from labile, flattened to blunted; as well as impairment of recent memory. Even so, she was cooperative, alert and oriented at all times. There was no impairment in her thought processes or content. Her insight and judgment remained intact. Thus, there is insufficient evidence showing her depression impaired her ability to function independently, appropriately and effectively to support a higher 70 percent disability rating. Even though the G.P.C. Treatment Notes suggests some memory impairment, there was no evidence showing the Veteran’s memory impairment included a loss for names of close relatives, own occupation or own name to support a higher 100 percent disability rating. While the Veteran was not working, she demonstrated she was able to maintain social relationships. She had a good relationship with her family. She maintained friendships with people at church as well as some outside of church. Thus, the evidence does not show an inability to establish or maintain effective relationships to support a higher 70 percent disability rating. The Veteran cites her low GAF score warrants disability rating in excess of 50 percent. See April 2015 Notice of Disagreement (the Veteran stated she had a GAF score of 35); May 2016 VA Form 9 (the Veteran stated she had a GAF score of 35). However, the Board notes the use of GAF scores was eliminated under the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM 5), which was adopted by the VA effective August 4, 2014. 80 Fed. Reg. 14308 (March 19, 2015). It was eliminated because of its “conceptual lack of clarity” and “questionable psychometrics in routine practice.” See Golden v. Shulkin, 29 Vet. App. 221, 224-25 (2018). Although Dr. E.W.H.’s assignment of the 45 GAF score occurred prior to the VA’s adoption of DSM 5, given the Board’s findings above, the Board accords it no probative weight. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); see also VAOPGCPREC 10-95 (March 31, 1995) (noting that while a medical professional’s assignation of a GAF score may be probative evidence of the veteran’s degree of disability, it is not determinative of the disability rating to be assigned). At no time during prior to November 3, 2016 did the Veteran manifest any other symptoms of a similar severity, frequency or duration of those typically associated with a 70 percent disability rating or higher. See Vazquez-Claudio, supra; see also Mauerhan, supra. Starting on November 3, 2016, the Veteran’s G.P.C. Treatment Notes document that she began suffering from weekly hallucinations. Thus, there is evidence of persistent hallucinations warranting a 100 percent disability rating from that date. REASONS FOR REMAND 1. The issue of entitlement to service connection for a right knee disability, secondary to service-connected chondromalacia patella of the left knee. In furtherance of this claim, the Veteran underwent a VA examination in January 2015. January 2015 Knee and Lower Leg Conditions VA Examination Report. Upon examination, the VA examiner confirmed her diagnosis of tricompartmental osteoarthritis of the right knee. Nevertheless, the VA examiner rendered a negative nexus opinion, finding it was neither caused or aggravated by her service-connected chondromalacia patella of the left knee. In doing so, there is no indication the VA examiner considered Dr. H.M.P.’s February 2014 opinion that her left knee condition and its resulting change in gait could very easily have caused some arthritic changes to appear in the right knee earlier than otherwise. February 2014 G.O. Treatment Note; cf. Stefl, supra. For this reason, a remand is necessary for an addendum medical opinion. 2. The issue of entitlement to TDIU prior to November 3, 2016. During a January 2015 VA examination, the Veteran reported that she stopped working around 2010 upon the recommendation of her doctor due to her service-connected chondromalacia patella of the left knee. January 2015 Mental Disorders VA Examination Report. Although the issue of TDIU is moot from November 3, 2016 in view of the Board’s award of a 100 percent disability rating for major depressive disorder from that date, the issue of TDIU prior to November 3, 2016 has been reasonably raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). In an April 2014 letter, the Veteran relayed that she has been receiving disability income from the Social Security Administration (SSA) due to her service-connected chondromalacia patella of the left knee. A review of the claims file is negative for any records from the SSA or a request for the same. Consequently, a remand is necessary to obtain these records. The matter is REMANDED for the following action: 1. Develop the Veteran’s claim for TDIU, to include providing her with all appropriate notice in accordance with the Veteran’s Claims Assistance Act of 2000; requesting that she submit a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability; and, if necessary, obtaining an examination with an appropriate medical professional to determine the occupational impairment resulting for the combination of her service-connected disabilities in terms of her ability to engage in both physical and sedentary employment. 2. Obtain all relevant SSA records. 3. Obtain a medical opinion from an appropriate medical professional to determine the nature and etiology of the Veteran’s claimed right knee disability. The need for another examination is left to the discretion of the medical professional offering the medical opinion. After reviewing the claims file, the examiner should: (a.) Opine as to whether it is at least as likely as not (50 percent probability or greater) the Veteran’s claimed tricompartmental ostearthritis of the right knee is proximately due to or aggravated beyond its natural progression by her service-connected chondromalacia patella of the left knee and explain why. (b.) In rendering an opinion, the examiner should consider the nexus opinion from Dr. H.M.P. in the February 2014 G.O. Treatment Note that the Veteran’s left knee condition and its resulting change in gait could very easily have caused some arthritic changes to appear in the right knee earlier than otherwise. (c.) In rendering an opinion, the examiner should consider and weigh the Veteran’s relevant lay statements of record. 4. Once the above requests have been completed, to the extent possible, readjudicate the appeal, to include the issue of entitlement to TDIU prior to November 3, 2016. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD G. Suh, Associate Counsel