Citation Nr: 18157611 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 09-22 121 DATE: December 13, 2018 ORDER A rating in excess of 50 percent for depressive reaction not otherwise specified (NOS) is denied. REMANDED A total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT 1. The frequency, severity, and duration of the symptoms of the Veteran’s service-connected psychiatric disorder do not cause occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. 2. Total occupational and social impairment, including a manifestation of hallucinations is not shown. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for depressive reaction NOS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1970 to February 1978. The case is on appeal from an August 2008 rating decision. The case was most recently before the Board in December 2017. At that time, the Board denied a rating in excess of 50 percent for the Veteran’s service-connected psychiatric disorder. The Board also denied a rating claim pertaining to left recurrent calculi, and service connection for a psychiatric disorder other than depression, and low back, prostate, skin and gastrointestinal disorders. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2018 order, and pursuant to an August 2018 joint motion for remand (JMR), the Court vacated the Board’s decision as to the psychiatric disorder rating claim. It was noted that the other six issues were being abandoned. Thus, the sole issue before the Board is the depressive reaction NOS rating claim, including the TDIU aspect as addressed below. In December 2017, the Board also remanded claims of service connection for disabilities manifested by headaches and dizziness, for additional development. The RO is working to complete that development and the issues have not yet been reconsidered and certified to the Board. Thus, these two claims are not now before the Board and will be decided in a future decision, if in order. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A rating in excess of 50 percent for depressive reaction NOS. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran’s service-connected depressive reaction NOS is evaluated under the criteria of DC 9434 (for major depressive disorder), which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A zero percent rating is warranted for a mental condition that has not been formally diagnosed, but symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is warranted for 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 rating is warranted 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when there is 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 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 warranted where there is 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 rating is warranted when there is 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 United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas”—i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118. Further, when evaluating a mental disorder, 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,” and must also “assign an evaluation 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.” 38 C.F.R. § 4.126(a). Although the Board has noted Global Assessment of Functioning (GAF) scores in the past while rating the Veteran’s psychiatric disorder, since then, the Court issued Golden v. Shulkin, 29 Vet. App. 221 (2018). Therein, the Court noted that GAF scores are often unreliable and poorly describe mental health symptoms severity. As a result, the Board will not be discussing GAF scores in this decision as descriptions in medical records and examination reports better illustrate the severity of the Veteran’s disability. Analysis In August 2007, the Veteran reported that his primary care provider doubled his medication from 20 mg to 40 mg of fluoxetine in June 2007 but that he had not noticed a benefit. He indicated that he had been missing work and was seeing a counselor at work. His counselor indicated that he might have PTSD as a result of seeing death in Thailand during the Vietnam War. He stated that he had suicidal thoughts due to his tinnitus, which caused worsening stress and depressed mood. He slept little due to urinary frequency. He enjoyed working on his ranch and hunting. The provider noted a history of depression and some PTSD-like symptoms. A November 2007 VA treatment record shows the Veteran complained of worsening depression due to his tinnitus. The provider noted depressed mood, intermittent insomnia due to nightmares, and nocturia. The Veteran reported decreased concentration and good energy. He exercised regularly as it improved his mood. The provider indicated that the Veteran’s affect was blunted and insight and judgment were fair to good. The provider decreased the Veteran’s medication to 20 mg. The provider stated that the Veteran did not meet the criteria for PTSD. In December 2007, the Veteran reported that he stopped taking his medication and experienced worsening depression, nightmares, and flashbacks. The provider noted that the Veteran was to start taking his medication again. An April 2008 note indicates that the Veteran’s symptoms improved once he started taking his medication again. His mood was depressed and affect blunted. The Veteran had a VA compensation and pension examination conducted in April 2008. The Veteran reported that his symptoms had worsened in the last year and that his VA primary care provider had doubled his antidepressants in 2007. He described feelings of heaviness, lack of patience, poor sleep, nightmares, poor motivation, poor concentration, and isolating behavior. His tinnitus aggravated his condition. The Veteran reported that he had been divorced twice and that his current marriage was suffering, as well as his relationships with his 5 children, due to his depression. He worked as a geologist. His relationship with his supervisor was good while his relationship with coworkers was fair to good. However, due to his depression, he did not want to go to work. He stated that he was less social and had no friends. Notably, in 2008 he took off work for 104 hours because of severe depression. He used almost all of his sick leave. The examiner observed abnormal affect and depressed mood, which occurred near-continuous but did not affect the Veteran’s ability to function independently. He also endorsed feelings of sadness and passive suicidal ideation. The examiner noted that the Veteran’s concentration was poor and he was easily distracted. His memory was impaired to a mild degree as he would forget names, directions, and recent events. The examiner diagnosed depressive disorder, not otherwise specified (NOS). The examiner stated that the Veteran had difficulty establishing and maintaining effective work and social relationships due to depression. The examiner opined that the Veteran’s depression symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks although he generally functioned satisfactorily with routine behavior, self-care, and normal conversation. His opinion was based on the Veteran’s depressed mood, chronic sleep impairment, and mild memory loss. Correspondence received in October 2009 shows the Veteran reported trouble sleeping, nightmares of war experiences, waves of heavy depressed mood, memory loss, and inability to focus on work. He indicated that he had used most of his sick leave due to depression. He had been counseled by a supervisor due to excessive use of sick leave. He also noted that he had been divorced twice and that his relationships suffered due to his depression. He indicated that his current marriage and the relationships with his children were suffering due to his depressed mood. The Veteran had a VA examination in May 2017. The examiner diagnosed persistent depressive disorder and indicated that the diagnosis is a continuation of the prior diagnosis of depressive disorder, NOS, as reported in the April 2008 examination report. The examiner also diagnosed maladaptive personality traits but indicated that the diagnosis does not constitute a mental disorder; however, the personality traits significantly influence and affect the Veteran’s choices, perceptions, and behavior. The examiner indicated that the Veteran did not have any other mental health disorder. During the examination, the Veteran presented in casual attire with good hygiene. He lives with his wife of 27 years. He has five children with his first wife and two step-sons with his current wife. He described how he has grown apart from his wife and most of his family. He described an incident with his ex-wife and oldest daughter, which occurred when his daughter was a year old, and the negative impact of the incident on his relationship with his daughter. He described his typical chores around the house and denied having any problems completing tasks when he can work at his own pace. In his free time, he watches television and reads. He attends church on Wednesday evenings and attends two services on Sunday. He oversees a senior ministry group. He volunteers at a food bank twice per month and bakes for church members once a week. He has mild problems getting along with people he is close to, and mild problems maintaining his friendships. He reported that his ability to get along with strangers has improved due to his participation in church over the last 2 years. The Veteran reported that he worked in a geology position until 2009 and served as a staff leader. He worked well with his peers and adequately with his supervisor. He retired in 2009. Since that time he has not been fully employed, but he volunteers with his church. The examiner stated that this does not represent a significant change in functioning from the April 2008 examination. The Veteran said he goes to bed around midnight but does not fall asleep immediately. He has a diagnosis of sleep apnea and wakes 2 to 3 times a night for various reasons. He described his concentration as poor to moderate but he can focus on things he is interested in for 30 to 60 minutes without a problem. He is capable of learning new things if he sees the value in doing so. When asked about symptoms specific to PTSD, the Veteran gave vague answers about his experiences. He described how he used to think about his experiences in Thailand, and had moments of being distressed by these memories; however, he could not recall the last time this happened and suggested it was around the time he was working. He denied trying to avoid any situations or reminders of his military service, adding that he never had a problem going hunting. When asked about recent experiences of anger, he said he insulted his wife over her weight gain. The examiner observed that the Veteran has experienced some reduction in self-confidence, and has characterized himself as moody and depressed. While he acknowledged that in the past his experience of tinnitus “drove me crazy,” he indicated that he has adjusted to it over time, and that it is less bothersome. He does not feel close to anyone in his life at this time. He reported that he does experience positive emotions in his work at his church, but denied feeling happy. The examiner reviewed the PTSD criteria but found that the Veteran did not meet Criterion B, C, D, E, and H. Regarding Criterion F and G, the examiner indicated that the Veteran does not meet the full criteria for PTSD. The Veteran’s symptoms included depressed mood, anxiety, and disturbances of motivation and mood. The examiner stated that the Veteran’s depressive disorder causes 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 medication. Based on the foregoing, and after conducting a holistic analysis, the Board finds that the Veteran’s service-connected psychiatric disorder does not warrant a rating in excess of 50 percent because the frequency, severity, and duration of the symptoms do not result in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. This is with consideration of the listed example symptoms in the rating criteria, consideration that the listed examples are not exhaustive, and with a focus on the impairment levels in which they result. See Vazquez-Claudio, 713 F.3d at 117-118; Mauerhan, 16 Vet. App. at 442. The Board acknowledges the Veteran’s report of passive suicidal thoughts in August 2007 as related to his tinnitus and again during his April 2008 examination. However, the Veteran denied suicidal ideation during other appointments, including appointments for general physical ailments. See VA treatment records, January 2010; August 2015, October 2015, and November 2015. Based on the two reports and lack of any other symptoms of the severity listed under the criteria for a 70 percent rating, the Board cannot find that the frequency, severity, and duration of this symptom alone causes occupational and social impairment with deficiencies in most areas, which is the ultimate question. See Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria, including suicidal ideation, is not necessarily dispositive of any particular disability level). Notably, there was no indication of 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; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships. The August 2018 JMR noted a September 2011 report in which the Veteran stated, “What I do not imagine is the flashbacks, nightmares, and visions . . . I see dead people talk to me.” JMR at 5. Specifically, the JMR directed the Board to consider whether this is an indication that the Veteran experienced hallucinations. Persistent hallucinations are one of the listed examples of total impairment in DC 9434. The Board finds that the September 2011 statement noted above is not an indication that the Veteran experienced hallucinations. In the September 2011 report itself, the Veteran, when stating that dead people talk to him, seems to be referencing his dreams. Second, the medical treatment records and examinations of record either expressly note the Veteran’s denial of hallucinations or no finding of hallucinations, or are silent as to such symptoms. The Board finds this sufficient evidence to weigh against a finding that hallucinations have been present. Accordingly, the Board does not find that this evidence supports a rating in excess of 50 percent, including a 100 percent rating. In sum, the Board finds that the frequency, severity, and duration of the symptoms of the Veteran’s service-connected psychiatric disorder do not cause occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood, and total occupational and social impairment, including a manifestation of hallucinations is not shown. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Therefore, a rating in excess of 50 percent for depressive reaction NOS is not warranted. REASONS FOR REMAND A TDIU. The August 2018 JMR also directed the Board to consider whether TDIU has been reasonably raised by the record. Specifically, to consider that the Veteran had stated that he has used up almost all of his sick leave due to depression, that he was counseled by a supervisor due to the use of his sick leave, and that he was unable to focus at work. Of note, VA treatment records from January 2010 indicate that the Veteran had recently retired at the age of 59. At the May 2017 VA examination, the Veteran indicated that he retired in 2009, at which time he was in a supervisory position. It is debatable whether this information raises a claim for a TDIU. Using leave and retiring are not indicative in and of themselves of unemployability and likely do not present cogent evidence of unemployability. See Roberson v. Prinicipi, 251 F.3d 1378, 1380 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447, 448 (2009). A simpler way to raise a TDIU claim is to expressly raise a TDIU claim. The Veteran was represented by a private attorney for nearly a decade and he did not claim a TDIU. Moreover, the private attorney representative before the Court did not expressly raise a TDIU claim. Furthermore, the present veterans service organization representative did not raise a TDIU claim at the time of a prior Board remand and even most recently in a November 2018 brief. By including the issue in the August 2018 JMR, the Board can only assume that the Veteran wishes to raise a claim for a TDIU. Thus, rather than attempting to conjure the issue from pieces of the record, the Board will find the issue expressly raised as part and parcel of the depressive reaction NOS rating claim given this history under Rice. A remand of this issue is warranted for appropriate development to gather more information regarding the Veteran’s education and employment history and the functional impacts of his service-connected disabilities on employability. It appears that he was a civilian in the federal government employment for about 23 years. The Veteran’s federal government personnel records should also be obtained. The remand will also allow for the RO to address the issue in the first instance. The matters are REMANDED for the following action: 1. Send the Veteran a VA Form 21-8940 or other appropriate TDIU form, and request that he complete and return it. 2. Obtain the Veteran’s Federal Government Personnel Records. 3. Obtain an opinion from an appropriate medical professional that includes comment on the functional impact on employability of the Veteran’s service-connected disabilities, to include their combined effects. In addition to depressive reaction NOS, the Veteran is presently service connected for left renal calculi, right shoulder condition, tinnitus, residuals of a left finger fracture, hearing loss, rhinitis, and erectile dysfunction. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. George