Citation Nr: 18152821 Decision Date: 11/27/18 Archive Date: 11/26/18 DOCKET NO. 16-26 917 DATE: November 27, 2018 ORDER Entitlement to an increased disability rating in excess of 70 percent for major depressive disorder is denied. REMANDED Entitlement to service connection for a left ankle condition is remanded. Entitlement to service connection for a bilateral foot disability is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to June 29, 2017 is remanded. FINDINGS OF FACT The Veteran’s major depressive disorder is characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene; suicidal ideation; 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); inability to establish and maintain effective relationships; flattened affect; 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; difficulty in adapting to stressful circumstances, including work or a worklike setting; depressed mood; anxiety; suspiciousness; chronic sleep impairment; and mild memory loss. CONCLUSIONS OF LAW The criteria for an increased disability rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is the Veteran’s surviving spouse. The Veteran died in June 2017. In a February 2018 letter, the AOJ notified the appellant that she was formally recognized as a substitute claimant in the Veteran’s major depressive disorder, left ankle condition, and bilateral foot condition appeals. Service Connection The appellant seeks a 100 percent disability rating for the major depressive disorder. The criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Psychiatric disabilities, to include major depressive disorder, are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the General Rating Formula for Mental Disorders, 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); or 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; or memory loss for names of close relatives, own occupation, or own name. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether the Veteran exhibited the symptoms listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Analysis Having reviewed the record, the Board finds that a 100 percent disability rating for major depressive disorder is not warranted. The Veteran’s major depressive disorder is characterized by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene; suicidal ideation; 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); inability to establish and maintain effective relationships; flattened affect; 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; difficulty in adapting to stressful circumstances, including work or a worklike setting; depressed mood; anxiety; suspiciousness; chronic sleep impairment; and mild memory loss. See, e.g., September 2013 VA Examination; January 2016 Disability Benefits Questionnaire (DBQ). A 100 percent disability rating is not warranted as there is no showing of total occupational and social impairment, to include as due to such symptoms as: persistent delusions or hallucinations; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that during the appeal period, the Veteran exhibited symptoms enumerated in the 100 percent rating criteria, such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. However, a review of the record indicates that these symptoms did not result in total occupational and social impairment; rather, these symptoms resulted in occupational and social impairment with deficiencies in most areas. The Board additionally notes that the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether the Veteran exhibited the symptoms listed in the Rating Schedule. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). VA must engage in an analysis of the severity, frequency, and duration of the symptoms, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The preponderance of the evidence indicates that the above-identified symptoms, either by itself or in combination with other symptoms, were not of such severity, frequency, or duration as to result in total occupational and social impairment. Treatment records do not document gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. Rather, treatment records indicated the opposite as the Veteran frequently presented with logical, linear, and goal-directed thought process and content; clear, coherent, relevant speech with good eye contact; and with casual and appropriate dress. See, e.g., June 2014, December 2014, August 2016, and May 2017 VA Records. Additionally, the Veteran was frequently assessed by treating clinicians to be at low risk for self-harm, and has reported that he has made only 1 attempt at self-harm shortly after the in-service traumatic event. See, e.g., June 2014 and July 2016 VA Records. Notably, these symptoms were identified by the September 2013 VA examiner and the September 2016 DBQ examiner. However, neither examiner concluded that the Veteran’s symptoms resulted in total occupational or social impairment. Significantly, both examiners ultimately determined that the resulting impairment from Veteran’s major depressive disorder was best summarized by occupational and social impairment with deficiencies in most areas. The evidence does not show total social impairment as the Veteran reports retaining relationships with family members. In September 2013, he reported being married for over 30 years, though his relationship with his wife was reportedly not good. However, he remained married up until the date of his death. In September 2013, he additionally reported an average relationship with his sons, good relationships with his siblings, and no friends. In January 2016, he reported helping his wife with her business. In July 2016, he reported to a treating clinician that he continued to live with his wife and that he was coping better with his symptoms due in part to his supportive wife. In September 2016, he reported being distant with his wife and boys, having no friends, and not attending social events. Of note, group treatment records do not indicate total social impairment. For example, in April 2015, the Veteran was observed to participate, laugh when appropriate, and provide encouragement to another veteran. In light of the above, the Board finds that the preponderance of the evidence is against a finding of total social impairment. Evidence submitted in September 2016, to include opinions by R.W. and S.B., indicate that the Veteran may have experienced some occupational impairment during a portion of the appeal period. However, as the preponderance of the evidence does not reveal total social impairment, the Board finds that a total disability rating is not warranted. For these reasons, the Board finds that the Veteran’s major depressive disorder is more nearly approximated by occupational and social impairment with deficiencies in most areas. The Board acknowledges private psychologist R.W.’s January 2016 statement that the Veteran’s depressive disorder has symptoms severe enough to continue to 100 percent. However, notably absent from R.W.’s opinion is a finding or rationale showing that the Veteran exhibited total social impairment. Though R.W. noted that the Veteran reported that social situations made things worse mentally and emotionally, there is no other discussion indicating that the Veteran was totally impaired socially. In light of this, R.W.’s opinion holds less probative weight than the remainder of the record, which indicates that the Veteran may have experienced some social impairment, but not total social impairment. In sum, there is occupational and social impairment with deficiencies in most areas, however, the evidence does not show that there was total occupational and social impairment. Accordingly, the Board finds that the Veteran’s major depressive disorder was more nearly approximated by occupational and social impairment, with deficiencies in most areas. A rating in excess of 70 percent is not warranted, and the claim for an increased disability rating must be denied. The Board has considered all psychiatric symptoms in reaching this conclusion. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 371 (2017). REASONS FOR REMAND Having reviewed the record, the Board finds that remand is warranted for the left ankle, bilateral foot, and TDIU appeals A September 2013 VA examiner determined that there was diagnosis related to the bilateral foot. He also opined that though there was a diagnosis of muscle injury of the soleus, there was no objective evidence of a left ankle injury that occurred in service. However, the Board notes that records indicate that the Veteran was subsequently diagnosed with a bilateral foot condition. A January 2016 VA treatment record noted diagnoses of gouty arthritis of the big toes. Additionally, a VA treatment record indicates a relationship may exist between the claimed left ankle condition and service. A June 2014 VA radiology record includes a notation that the Veteran’s reported history and a physical examination were suggestive of a remote (more than 30 years) achilles tendon rupture with subsequent disuse atrophy of muscle. For these reasons, the Board finds that an addendum opinion is warranted to clarify the etiology of the claimed left ankle disability and any bilateral foot condition. On remand, the examiner should consider the June 2014 VA treatment record, the January 2016 VA treatment record and the February 1975 service treatment record documenting the Veteran’s report that he injured his ankle in high school football and had recurring sprains since then. If the examiner determines that a left ankle condition clearly and unmistakably preexisted service, then the examiner should provide an opinion on whether the preexisting condition was aggravated by service. Evidence of unemployability was submitted during the appeal for the assigned disability rating for major depressive disorder. As such, a claim for entitlement to a TDIU is considered to have been raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Board finds that the claim for TDIU is inextricably intertwined with the aforementioned claims and must be remanded as well. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Any additional development required for TDIU should be completed. To the extent possible, an attempt should be made to verify the Veteran’s dates of employment and/or unemployment prior to his death, to include providing the appellant with a VA Form 21-8940. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s claimed left ankle condition. The clinician should provide the opinions requested below. a) State whether a left ankle condition clearly and unmistakably (obvious and manifest) preexisted service. b) If a left ankle condition preexisted active service, state whether there was a permanent increase in disability during service. If the examiner finds that any increase in disability was not due to permanent worsening, but, rather, was due to the natural progress of the preexisting disorder, the examiner should cite to clear and unmistakable evidence supporting his or her opinion. c) If a left ankle condition did not preexist service, state whether it at least as likely as not (a probability of 50 percent or greater) began in or is otherwise related to service. The examiner should consider the June 2014 VA notation that the reported history and physical examination were suggestive of a remote (more than 30 years) achilles tendon rupture with subsequent disuse atrophy of muscle. Attention is invited to the February 1975 service treatment record documenting the Veteran’s report that he injured his ankle in high school football and had recurring sprains since then. 2. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran’s claimed bilateral foot condition. The clinician should state whether it is at least as likely as not related to service. Attention is invited to January 2016 diagnosis of gouty arthritis of the bilateral big toes. Any opinions offered should be accompanied by the underlying reasons for the conclusions. (Continued on the next page)   3. Complete any development warranted for the TDIU claim, to include obtaining a VA Form 21-8940 from the appellant if appropriate. Any attempt to verify the Veteran’s periods employment and/or unemployment prior to his death should be documented in the claims file. K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Vang, Associate Counsel