Citation Nr: 18150057 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 16-27 812 DATE: November 14, 2018 ORDER Entitlement to an initial disability rating in excess of 30 percent for other specified depressive disorder with other specified anxiety disorder is denied. Entitlement to service connection for renal insufficiency is denied. REMANDED Entitlement to service connection for obstructive sleep apnea, to include as secondary to Gulf War Syndrome and service-connected other specified depressive disorder with other specified anxiety disorder is remanded. Entitlement to service connection for mild osteoarthritis of the left knee, to include as secondary to service connected right knee status post degenerative and traumatic arthritis with talar dome cystic lesion is remanded. Entitlement to service connection for left ankle degenerative arthritis, to include as secondary to service connected right knee status post degenerative and traumatic arthritis with talar dome cystic lesion is remanded. FINDINGS OF FACT 1. The Veteran’s other specified depressive disorder with other specified anxiety disorder is not manifested by symptoms that result in occupational and social impairment with reduced reliability and productivity. 2. The Veteran does not have renal dysfunction as evidenced by persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 30 percent for other specified depressive disorder with other specified anxiety disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.126, 4.130, Diagnostic Code 9413-9434. 2. The criteria for service connection for renal insufficiency are not met. 38 U.S.C. §§ 1110, 1111, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1989 to May 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). A December 2014 rating decision granted service connection for other specified depressive disorder with other specified anxiety disorder and assigned a 30 percent disability rating, effective July 7, 2014. The rating decision also denied the Veteran’s claims for service connection for mild osteoarthritis of the left knee and for left ankle degenerative arthritis. An August 2016 rating decision denied the Veteran’s claim for service connection for obstructive sleep apnea. Lastly, an April 2017 rating decision denied the Veteran’s claim for service connection for renal insufficiency. Increased Rating VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. See 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 1. Entitlement to an initial disability rating in excess of 30 percent for other specified depressive disorder with other specified anxiety disorder is denied. A. Rating Criteria The Veteran’s anxiety disorder is rated under Diagnostic Code (DC) 9413-9434. 38 C.F.R. § 4.130. Almost all mental health disorders, including depressive disorder and anxiety disorder, are evaluated under the General Rating Formula for Mental Disorders (General Rating Formula), which assigns ratings based on particular symptoms and the resulting functional impairment. Id. Under the General Rating Formula, a 10 percent disability rating requires: 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 continuous medication. A 30 percent disability rating requires: 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, or recent events). A 50 percent disability rating requires: 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 disability rating requires: 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.) A 100 percent disability rating requires: 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. Id. The symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. Id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual for Mental Disorders (DSM-V). Id. at 443; see 38 C.F.R. § 4.130. If the evidence demonstrates that the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126 (2017); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). In short, there are two elements that must be met to assign a particular rating under the General Rating Formula: (1) symptoms equivalent in severity, frequency, and duration to the symptoms corresponding to a given rating, and (2) a level of occupational and social impairment corresponding to that rating that results from those symptoms. Vazquez-Claudio, 713 F.3d at 118. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. 38 C.F.R. § 4.126. The preponderance of the evidence weighs against a rating in excess of 30 percent for the Veteran’s other specified depressive disorder with other specified anxiety disorder. In August 2014, the Veteran underwent a private psychiatric evaluation. The evaluation report notes that the Veteran stated several times in the past that he had suicidal thoughts, but stated that he would take no actions on those thoughts. The evaluation also provides that the Veteran added that he is moody, easily agitated, sometimes feels like less of a man due to physical limitations, sometimes loses interest with certain tasks, has no memory issues, feels nervous, anxious, and on edge, and is unable to control worrying. The Veteran’s affect was noted as congruent to his mood. The evaluation report indicates that the Veteran does not experience flight of ideas, looseness of association, circumstantial thought, or preservation. The evaluation report further shows that the Veteran has thought blocking, word searching, and delayed thought. According to the evaluation report, the Veteran denied auditory, visual, and tactile hallucinations and he denied suicidal or homicidal thought or any self-injurious behavior and paranoia or delusions were not noted. The Veteran underwent a VA examination in November 2014. The examination report indicates the Veteran has diagnoses of other specified depressive disorder and other specified anxiety disorder. The examination report further shows that the Veteran reported symptoms of depressed mood, loss of interest and pleasure, energy loss, appetite disturbance, sleep disturbance, irritability, worthlessness, guilt, hopelessness, low self-esteem, anxiety, hypervigilance, panic attacks, and safety fears. The Veteran’s level of occupational and social impairment with regards to all mental diagnoses was noted as 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 continuous medication. The examination report lists depressed mood, anxiety, and panic attacks that occur weekly or less often as symptoms that actively apply to the Veteran’s diagnoses. Lastly, the examination report provides that the Veteran’s speech was with normal limits, he was alert, attentive, and oriented to person, place, time, and situation, his recent and remote memory abilities appeared intact, and he displayed some evidence of abstract reasoning. There was no evidence of delusion, auditory or visual hallucinations observed during the examination, but the Veteran described one previous visual hallucination. The Veteran underwent a VA examination in May 2016. The examination report demonstrates that the Veteran’s level of 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). The examination report lists depressed mood, anxiety, and chronic sleep impairment that actively apply to the Veteran’s diagnoses. The Veteran’s affect was described as blunted. The examination report lists the Veteran’s thinking as logical and organized, and his speech within normal limits as to articulation, rate, tone, volume, and production. The examination report further demonstrates that the Veteran was alert, attentive, and oriented to person, place, time, and situation, and no acute indicators were noted. The examination report notes that the Veteran has been employed since 2007. The Veteran’s private treatment records demonstrate that the Veteran presented with blunted affect and psychomotor retardation. The private treatment records indicate that the Veteran reported anxiety, depression, and hyper-arousal symptoms. The Veteran showed no flight of ideas, no looseness of association, no circumstantial thought. The Veteran denied auditory, visual, and tactile hallucinations. The private treatment records also show the Veteran denied suicidal or homicidal thought or any self-injurious behavior, and did not experience delusions. The preponderance of the evidence shows that although the Veteran has reported symptoms corresponding to 50 percent and 70 percent ratings, they do not result in reduced reliability and productivity or deficiencies in most areas. Accordingly, the Veteran’s level of occupational and social impairment does not satisfy the criteria for a 50 percent rating or higher. Thus, his psychiatric disorder does not more nearly approximate the criteria for a rating higher than 30 percent. Because the preponderance of the evidence weighs against the claim for an increased rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Service Connection Service connection will generally be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link or nexus between the in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 252 (1999). To establish service connection on a secondary basis, the evidence must show a current disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. 38 C.F.R. § 3.310(b). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including cardiovascular-renal disease, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation, or by showing a continuity of symptoms after service. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). 38 C.F.R. § 3.303(b). In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for cardiovascular-renal disease if the disease manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to service connection for renal insufficiency is denied. The question for the Board is whether the Veteran has renal insufficiency that began during service or is at least as likely as not related to an in-service injury, event, or disease. The preponderance of the evidence demonstrates that the Veteran does not have a current diagnosis of renal insufficiency or any renal dysfunction, and has not had renal insufficiency or dysfunction during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton, 557 F.3d at 1366; Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The May 2016 VA examiner evaluated the Veteran and determined that, per the Veteran’s reports, that he was diagnosed with chronic renal disease, secondary to hypertension in 2003. The examination report notes that the renal insufficiency was first shown in laboratory work from June 2003. The examination report also demonstrates that the Veteran has renal dysfunction as evidenced by either persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2 and that April 2016 testing showed a GFR of 56. The Veteran’s VA treatment records note that the Veteran has chronic renal insufficiency. However, the overwhelming competent medical evidence demonstrates that the Veteran does not have a diagnosis of renal insufficiency as shown by either persistent proteinuria, hematuria, or GFR <60 cc/min/1.73m2. First, the Veteran’s private treatment records during his appeal reveal numerous tests indicating that the Veteran’s GFR was tested at over 60. The Veteran’s private treatment records and VA treatment records also do not show persistent proteinuria or persistent hematuria. Additionally, the December 2016 VA examiner noted the Veteran’s medical records note a history of chronic renal disease, but found that the Veteran has not had consistent GFR of less than 60. The examiner indicated that the Veteran’s GFR was 65 on January 2015 and 76 on October 2016. The examiner also stated that there is no documentation of persistent proteinuria. Thus, the examiner concluded that the Veteran does not have renal dysfunction. The Board affords more weight to the December 2016 VA examiner’s finding that the Veteran does not have currently have a diagnosis of renal insufficiency or renal dysfunction as the examiner cited to multiple instances where the Veteran’s GFR was over 60 and noted that there is no evidence of persistent proteinuria for the Veteran. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion comes from its reasoning). The May 2016 VA examiner cited to one test that demonstrated the Veteran’s GFR was under 60. In providing a diagnosis, the May 2016 VA examiner did not state that the Veteran experienced persistent proteinuria or hematuria during the appeal. Moreover, in contrast to the December 2016 examiner, the May 2016 examiner’s findings otherwise appear solely based on history related by the Veteran, rather than examination or review of his medical records. The Veteran’s private treatment records show his GFR was consistently over 60 during his appeal and there is no evidence that the Veteran has either persistent proteinuria or hematuria based on both his private treatment records and VA treatment records. In sum, the preponderance of the evidence weighs against service connection for renal insufficiency as the competent evidence of record does not show the Veteran has a current diagnosis of renal insufficiency or renal dysfunction. Because the preponderance of the evidence weighs against the claim for service connection, the benefit-of-the-doubt rule does not apply and the Veteran’s claim for service connection is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include as secondary to Gulf War Syndrome and service-connected other specified depressive disorder with other specified anxiety disorder is remanded. The Board finds that the July 2016 private medical opinion and October 2016 VA medical opinion are not sufficient to make an informed decision. The July 2016 private medical opinion concludes that while the Veteran’s posttraumatic stress disorder (PTSD) does not cause his obstructive sleep apnea, it might exacerbate his symptoms. However, the Veteran is not service-connected for PTSD. The medical opinion does not address whether the Veteran’s obstructive sleep apnea may be secondary to his service-connected other specified depressive disorder with other specified anxiety disorder. The October 2016 VA medical opinion states that the Veteran’s obstructive sleep apnea is an anatomical dysfunction as opposed to a central nervous system dysfunction, and thus there is no exacerbation or aggravation of the Veteran’s obstructive sleep apnea by his PTSD. The opinion does not address whether it may be aggravated by his service-connected depressive and anxiety disorders, or address whether the Veteran’s service-connected psychiatric disorder may aggravated his sleep apnea symptoms (even if they are physiological in origin) beyond a medically established baseline. On remand, an addendum opinion must be obtained that considers whether the Veteran’s obstructive sleep apnea is secondary to his service-connected other specified depressive disorder with other specified anxiety disorder. 2. Entitlement to service connection for mild osteoarthritis of the left knee, to include as secondary to service connected right ankle status post degenerative and traumatic arthritis with talar dome cystic lesion and; 3. Entitlement to service connection for left ankle degenerative arthritis, to include as secondary to service connected right ankle status post degenerative and traumatic arthritis with talar dome cystic lesion are remanded. The Board finds that the July 2014 private medical opinion and November 2014 VA medical opinion are not sufficient to make an informed decision. The July 2014 private medical opinion concludes that the Veteran’s service-connected right ankle disability contributes to, or aggravates his left knee disability and left ankle disability. A corresponding July 2014 private treatment record indicates that the Veteran’s bilateral ankle pain began 12 years earlier during a twisting injury during active service and his associated symptoms include arthralgias of the knees. The private treatment record states that the Veteran originally injured his right ankle, but his left ankle and knee problems have developed probably because of the original injury and right ankle problems. The July 2014 opinion and the statement in the private treatment record do not explain the basis for the conclusions reached. Thus, they do not aid in making an informed decision. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (noting that “a medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two.”) Concerning the Veteran’s mild osteoarthritis of the left knee, the November 2014 VA medical opinion concludes that the Veteran’s radiological and clinical examination findings are consistent with age expected degenerative changes and therefore is not related to his service-connected right ankle disability. Regarding the Veteran’s left ankle degenerative arthritis, the November 2014 VA medical opinion again concludes that the Veteran’s symmetrical non-traumatic osteoarthritis in his left and right ankles is consistent with age expected degenerative changes and not status post trauma or prior injury and is thus not related to his service-connected right ankle disability. The VA opinion does not explain the basis for these conclusions, or address whether the Veteran has an abnormal gait due to his right ankle disability that may have caused or aggravated his left knee and ankle conditions. The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2018 to the present. 2. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s obstructive sleep apnea is at least as likely as not: (1) proximately due to his service-connected other specified depressive disorder with other specified anxiety disorder; or (2) aggravated beyond its natural progression by his service-connected other specified depressive disorder with other specified anxiety disorder. The opinion must be supported with a complete explanation. 3. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s mild osteoarthritis of the left knee is at least as likely as not: (1) proximately due to service-connected right ankle status post degenerative and traumatic arthritis with talar dome cystic lesion; or (2) aggravated beyond its natural progression by service-connected right ankle status post degenerative and traumatic arthritis with talar dome cystic lesion. The opinion must be supported with a complete explanation. 4. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran’s left ankle degenerative arthritis is at least as likely as not: (1) proximately due to service-connected right ankle status post degenerative and traumatic arthritis with talar dome cystic lesion; or (2) aggravated beyond its natural progression by service-connected right ankle status post degenerative and traumatic arthritis with talar dome cystic lesion. The opinion must be supported with a complete explanation. J. Rutkin Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Mussey, Associate Counsel