Citation Nr: 18147765 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 17-62 601 DATE: November 6, 2018 ORDER Entitlement to a rating in excess of 50 percent for major depressive disorder is denied. REMANDED Entitlement to service connection for a back disability secondary to a service-connected right shoulder disability is remanded. FINDING OF FACT The Veteran’s service-connected major depressive disorder has been characterized by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.14, 4.126, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION Initially, the Board notes that a May 2017 rating decision denied service connection for diabetes mellitus as secondary to service-connected rhinitis. Although he initiated an appeal with a timely notice of disagreement, and VA issued a statement of the case (SOC) in November 2017, the Veteran did not perfect the appeal. In this regard, in his November 2017 substantive appeal form, the Veteran indicated that he was only appealing PTSD and lumbar spondylosis; he did not indicate that he wanted to appeal all of the issues on the SOC (and any supplemental statement of the case). Therefore, the issue of entitlement to service connection for diabetes mellitus as secondary to service-connected rhinitis is not on appeal before the Board. The Board also notes that TDIU has been granted. The Veteran has not appealed the effective date of this disability, and the Board finds that the issue of TDIU is not before the Board. Entitlement to a rating in excess of 50 percent for an acquired psychiatric disability Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Court has held that “staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App 119 (1999). In this case, the Veteran’s disability has significantly changed over the course of the appeal period; thus, staged ratings have been assigned accordingly. The Veteran’s major depressive disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9411. The rating criteria provides a 10 percent rating for occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is provided 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). A 50 percent rating is provided 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 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; difficulty in establishing and maintaining effective work and social relationships. 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. 38 C.F.R. §§ 4.125 - 4.130. The medical evidence demonstrates that the Veteran’s PTSD more closely approximates the picture contemplated for a 50 percent disability rating. In this regard, during the initial December 2016 VA examination, the Veteran presented VA examiner noted that the Veteran’s though process was coherent and logical. There was no looseness of association and no sign of disorganized speech. There was also no sign of delusions, hallucinations, phobias, obsession, panic attacks or suicidal ideation. The VA examiner indicated that the Veteran’s mood was relaxed, his affect was broad and appropriated, and the Veteran was oriented in person, place and time. She also indicated that the Veteran’s capacity was normal, his judgment was good and his insight was adequate. The VA examiner summarized the Veteran’s occupational and social impairment as occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. In July 2017, the Veteran reported that his wife indicated that his nightmares returned. The VA examiner evaluated the severity of the Veteran’s depressive disorder and summarized his occupational and social impairment as reduced reliability and productivity. Post-service medical records show that the Veteran receives treatment for his major depressive disorder, to include prescribed anti-depressant medication and electroconvulsive therapy. The Board finds that the Veteran’s major depressive disorder more closely approximates the picture contemplated for a 50 percent disability rating. The evidence does not demonstrate that required for a 70 percent rating or an even higher 100 percent rating. In particular, the evidence does not show 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); and/or inability to establish and maintain effective relationships or total occupational and social impairment. The Board is cognizant that the Veteran is in receipt of SSA disability benefits and he has referenced these records as evidence in support of his appeal. These records reflect that disability benefits were granted and these records reference his psychiatric disabilities. These records, however, do not reflect that the overall functional impact of his service-connected psychiatric disability on his social and occupational functioning is greater than currently rated under schedular criteria. The Board has considered all lay and medical evidence and finds that the 50 percent rating currently in effect contemplates the impact of the Veteran’s symptoms. As noted above, TDIU benefits were granted effective prior to the receipt of the SSA records. The preponderance of the evidence is against a rating in excess of 50 percent for major depressive disorder and is therefore denied. REASONS FOR REMAND Entitlement to service connection for a back disability secondary to a service-connected right shoulder disability is remanded. Remand is required to obtain an adequate VA opinion that addresses whether the Veteran’s back disability is aggravated by his service-connected right shoulder disability. Although the Veteran underwent VA examinations in December 2106 and July 2017, they are both inadequate as neither provided an opinion regarding aggravation. Therefore, upon remand, an adequate VA addendum opinion should be obtained.   The matter is REMANDED for the following action: Obtain an addendum opinion from the December 2015 VA examiner or another appropriate clinician regarding whether the Veteran’s low back disability has been aggravated by his service-connected right shoulder disability. If aggravation of the back disability is found, the examiner should attempt to identify the baseline level of the back disability that existed before aggravation by the service-connected right shoulder disability. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Hemphill, Associate Counsel