Citation Nr: 18150398 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 15-37 727 DATE: November 15, 2018 ORDER Entitlement to an initial rating in excess of 50 percent for major depressive disorder is denied. REMANDED Entitlement to service connection for sleep apnea, to include upper airway resistance syndrome (UARS) is remanded. The appeal as to whether the rating reduction from 20 percent to 0 percent effective March 15, 2015, for status post anterior cruciate ligament (ACL) reconstruction, right knee, is remanded. Entitlement to a compensable rating for status post ACL reconstruction, right knee, is remanded. Entitlement to special monthly compensation for loss of use of a creative organ is remanded. FINDING OF FACT The Veteran’s service-connected major depressive disorder is manifested by no more than an occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C. § 1155 (2012), 38 C.F.R. §§ 4.1, 4.3, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from October 1987 to August 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Lincoln, Nebraska, Regional Office (RO) of the Department of Veterans Affairs (VA) that assigned a 30 percent rating for major depressive disorder, after granting service connection for the same. A subsequent September 2015 rating decision granted an increased 50 percent rating for the Veteran’s service-connected major depressive disorder and assigned an effective from the date of the initial claim on April 28, 2014. 1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. This Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. For the application of this schedule, accurate and fully descriptive medical examinations are required, with emphasis upon the limitation of activity imposed by the disabling condition. Over a period of many years, a veteran’s disability claim may require reratings in accordance with changes in laws, medical knowledge and his or her physical or mental condition. It is essential, both in the examination and in the evaluation of disability, that each disability be viewed in relation to its history. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2018). Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Evaluation of disabilities based upon manifestations not resulting from service-connected disease or injury and the pyramiding of ratings for the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2018). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2018). When rating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and a veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating 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. When rating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126 (2018). During the course of this appeal, the rating criteria were revised to update references pertinent to the American Psychiatric Association, Diagnostic and Statistical Manual for Mental Disorders (5th ed.) (DSM-5). Those changes included removal of the multi-axis system, Global Assessment of Functioning (GAF) score method of assessment. No additional substantive revisions have been made to VA’s General Rating Formula for Mental Disorders. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). For appeals certified to the Board after August 4, 2014, GAF scores are not to be used in evaluating mental disorder ratings. See Golden v. Shulkin, 29 Vet. App. 221 (2018). The present appeal was certified to the Board in May 2016. A 50 percent rating is assigned when a veteran’s mental disability causes 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-term 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran’s mental disability causes 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); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran’s mental disability causes 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. 38 C.F.R. § 4.130, Diagnostic Code 9411. The use of the term ‘such as’ in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase ‘such symptoms as,’ followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was also noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. The actual effects of suicidal ideation on occupational and social situation must be considered to determine the severity of that symptom. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant. However, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 4.3 (2018). The Veteran contends that his service-connected major depressive disorder is more severely disabling than indicated by the present evaluation. In a statement received by VA in June 2014 he reported mental health symptoms including chronic sleep problems, danger of hurting self or others, depression, difficulty making decisions, heavy use of alcohol, neglect of family, sense of helplessness, suicidal feelings/thoughts, and taking medications for mental conditions. VA treatment records include an April 2011 report noting a diagnosis of adjustment disorder with depressed mood. A mental status examination was within normal limits. Mood was described as discouraged. There was no suicide plan or intent. Private treatment records include diagnoses of depression. A May 2013 report noted serious symptoms. An October 2013 report noted mood was improved. VA examination in September 2014 included a diagnosis of major depressive disorder, severe, without psychosis. The examiner found the disorder was best described as an occupational and social impairment with reduced reliability and productivity. Identified symptoms for rating purposes were reported including depressed mood, chronic sleep impairment, and disturbance of motivation and mood. It was noted the Veteran was currently employed as a mail handler. Based upon the evidence of record, the Board finds the Veteran’s service-connected major depressive disorder is manifest by no more than an occupational and social impairment with reduced reliability and productivity. The available treatment record do not support a higher rating. The September 2014 VA examination report is found to be persuasive and based upon adequate examination and consideration of the evidence of record. Therefore, entitlement to an initial rating in excess of 50 percent is denied. The Board acknowledges that the Veteran is competent to report observable symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability. Competent evidence concerning the nature and extent of the Veteran’s service-connected disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which the disability is evaluated. The Board accords these records greater weight than the Veteran’s reported complaints of increased symptomatology. See Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991). Consideration has been given to the fact that the Veteran checked boxes on a form provided in support of his claim in June 2014 indicating symptoms of danger of hurting self or others and suicidal feelings/thoughts, and that the Court has held that in Bankhead v. Shulkin, 29 Vet. App. 10 (2017) held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38 C.F.R. § 4.130). The facts in Bankhead and those in the present case can be distinguished. In Bankhead, the claimant was noted to have had recurrent suicidal thoughts and behaviors of varying severity, frequency, and duration throughout the relevant appeal period. There are no such findings in the present case. Rather, while the Veteran checked off a box noting suicidal ideation, there are no treatment records noting recurrent suicidal ideation. The VA examination was negative for any suicidal ideation. When all the evidence is assembled VA is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim in which case the claim is denied. Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). The preponderance of the evidence in this case is against the claim. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea, to include UARS, is remanded. 2. The appeal as to whether the rating reduction from 20 percent to 0 percent effective March 15, 2015, for status post ACL reconstruction, right knee, is remanded. 3. Entitlement to a compensable rating for status post ACL reconstruction, right knee, is remanded. 4. Entitlement to special monthly compensation for loss of use of a creative organ is remanded. The Veteran contends that he had UARS as a result of active service, and that his service-connected right knee disabilities are more severe than presently evaluated and that his status post ACL reconstruction disability has not improved. He asserts that VA examinations as to the UARS and right knee issues are inadequate. He adds that the issue of entitlement to special monthly compensation for loss of use of a creative organ should be considered a matter on appeal. The Board notes that an August 2015 VA examination report provided a diagnosis of UARS based a July 2015 sleep study. Although the examiner found it was less likely the disorder was incurred in, caused by, or aggravated by the complaints of snoring noted by the Veteran’s spouse during service, the rationale for the opinion was based upon a lack of “objective evidence.” No comments were provided, however, addressing whether a medical diagnosis of UARS requires objective evidence or if the finding was merely a factual determination of the available evidence rather than a medical or scientific determination applying the VA “at least as likely as not” medical opinion standard. See Wise v Shinseki, 26 Vet. App. 517, 531 (2014). The Board also notes that the December 2014 rating decision reduced the Veteran’s rating for status post ACL reconstruction, right knee, based in pertinent part upon September 2014 VA examination findings. Although the examiner reported there was no evidence or history of recurrent patellar subluxation/dislocation, the opinion appears to be inconsistent with prior VA treatment reports dated in July 2003 and November 2009 noting right knee instability and laxity. At his November 2012 VA examination the Veteran reported feelings of catching with prolonged extension of the right knee. It is also significant to note that an adequate orthopedic examination should record the range of motion for pain on active motion and passive motion and in weight-bearing and nonweight-bearing, address the necessary findings to evaluate functional loss during flare-ups, or clearly explain why the required testing cannot be completed or is not necessary. Correia v. McDonald, 28 Vet. App. 158 (2016). VA records show the Veteran submitted a notice of disagreement from a September 2015 rating decision denying entitlement to special monthly compensation for loss of use of a creative organ. In correspondence issued on December 20, 2017, the RO erroneously informed the Veteran that his appeal was not accepted because the issue had not been denied. The United States Court of Appeals for Veterans Claims (hereinafter the Court) has held that where the Board finds a notice of disagreement has been submitted regarding a matter which has not been addressed in a statement of the case, the issue should be remanded for appropriate action. Manlincon v. West, 12 Vet. App. 238 (1999). As this issue has not been properly addressed in a statement of the case, it must be remanded for appropriate development. The matters are REMANDED for the following action: 1. Issue a statement of the case as to the issue of entitlement to special monthly compensation for loss of use of a creative organ. The Veteran and his attorney should be apprised that a substantive appeal must be submitted to perfect the appeal for Board review, and the requisite period of time for a response should be allowed. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any present UARS or similar sleep apnea-type disorder. The examiner must opine whether it is at least as likely as not related to an in-service injury, event, or disease, including any credible evidence of snoring in service. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Schedule the Veteran for an examination of the current severity of his right knee disabilities. The examiner must report all right knee symptoms manifest during the appeal period; address whether there is any evidence or history of recurrent subluxation or lateral instability (including any demonstrated improvement since March 1, 2015); and test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to these disabilities alone and discuss the effect on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Douglas, Counsel