Citation Nr: 19126133 Decision Date: 04/05/19 Archive Date: 04/05/19 DOCKET NO. 17-55 644 DATE: April 5, 2019 ORDER An increased initial 70 percent rating for major depressive disorder is granted. REMANDED The issue of entitlement to an initial disability rating in excess of 20 percent for left lower extremity radiculopathy is remanded. The issue of entitlement to a total disability based on individual unemployability due to lower back and major depressive disorder disabilities is remanded. FINDING OF FACT Throughout the period under review, the Veteran’s major depressive disorder resulted in functional limitation most closely approximating occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Throughout the period under review, the criteria for an increased initial evaluation of 70 percent, but no higher, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to January 1996. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s major depressive disorder is currently rated as 30 percent disabling throughout the claim period. The relevant rating criteria of 38 C.F.R. § 4.130, Diagnostic Code 9434 are as follows. A 30 percent rating is assigned 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 assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; 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 (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 inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Court has held that the use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The clinical evidence of record presents a consistent disability picture of depression and chronic sleep impairment. A July 2012 VA examination report documented an impression of major depressive disorder and polysubstance dependence. The Veteran reported that he is a single parent, caring for four children. The Veteran stated that he does not currently have any friends and never had a lot of friends. He indicated that he has been attending classes at Crossroads Bible College for the last three years. The Veteran endorsed symptoms of depressed mood and chronic sleep impairment. These symptoms manifested in loss of appetite, loss of interest, difficulty concentrating, depression, and frustration. He expressed that “I don’t think I’m worth anything . . . I think about death and suicide all the time. But I’ve never has a plan or intent to do it.” Regarding self-harm, the Veteran stated that “I would never do it because of my children.” More recently, the Veteran underwent an April 2018 VA mental health examination. The Veteran reported that he has been working at the Marriot hotel in the concierge lounge for the last 5 years. He reported his mood as irritable and depressed. The Veteran denied thoughts of harming others, but described a history of passive, transient thoughts of self harm but a desire “not to let his son down.” He stated “it’s just a thought.” During the examination, the Veteran endorsed symptoms of depressed mood and chronic sleep impairment. The examiner found that the severity of the Veteran’s depression “could possibly interfere with his ability to successfully complete tasks and to arrive to work promptly and/or consistently.” The Board finds that the Veteran’s symptoms impair his ability to effectively engage with coworkers, timely report to work, efficiently complete tasks, and manage workplace stress. Despite evidence of the Veteran’s involvement and attention to his family, clinical evidence documents deficiencies in judgment and family relations due to his major depressive disorder. Specifically, a March 2011 VA treatment record indicated that the Veteran was ending his relationship with his fiancé. During the same treatment session, the Veteran stated “just not wanting to be here anymore.” A March 2011 therapy session note documented the Veteran’s parenting difficulties with his eldest daughter. In June 2011, the Veteran revealed that he was attending parenting classes and child protective services was investigating a bruise on his daughter that he caused when he applied corporal punishment. The July 2012 VA examination report stated that he loses interest in his children and feels he does not discipline his children “enough.” He reported that “[t]hen I end up yelling at them.” More recently, an August 2017 VA progress note recorded the Veteran’s report that “his family members have mentioned he sleeps a lot and noted his lack of energy.” At the April 2018 VA examination, the Veteran said that he had not seen his eldest daughter in two years. He stated that he currently lives with his son, his fiancé, and her son. According to the Veteran, the relationship is “going okay” but he noted they are seeing a counselor because of “communication issues.” Additionally, the Veteran’s reports of suicidal ideations demonstrate occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 435, *19 (Mar. 27, 2017) (holding that suicidal ideation need not be active in nature to warrant the assignment of a 70 percent rating; rather, the appropriate inquiry is whether either passive or active suicidal ideation, in the absence of other symptoms similar to those listed as examples in the criteria for a 70 percent rating, results in social and occupational impairment with deficiencies in most areas). Resolving all doubt in the Veteran’s favor, the Board finds that the evidence of record demonstrates the Veteran’s major depressive disorder symptoms resulted in occupational and social impairment with deficiencies in work, family relations, judgment, thinking, and mood. The Board finds the Veteran’s history of passive suicidal ideations a significant factor in granting a higher rating. Thus, this impairment resulted in deficiencies that more nearly approximates the criteria for a 70 percent disability rating throughout the appeal period. On the other hand, the record does not reflect that the Veteran has demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. The Veteran has denied obsessions, compulsions, hallucinations, and delusions, and the examiners did not observe such. In addition, the July 2012 and April 2018 VA examiners opined that the Veteran’s major depressive disorder results in occupational and social impairment with occasional decrease in work efficiency, as evidenced by the fact that he remains employed. Despite evidence that the Veteran struggles with interpersonal relationships and with his occupational functioning, there is no evidence of either total occupational or social impairment, such that a 100 percent rating would be warranted. The Board acknowledges the Veteran’s history of suicidal ideations and the corporal punishment incident, but the record demonstrates that this danger has not been persistent, as is required for a higher 100 percent rating. VA treatment records reveal that the Veteran denied suicidal and homicidal ideations in June 2011, July 2011, September 2011, April 2012, May 2012, June 2014, February 2015, and August 2015. Thus, it appears that the Veteran’s major depressive disorder overall has been considerably less severe than that which is contemplated by the criteria for a 100 percent rating. As such, a rating in excess of 70 percent for major depressive disorder is not warranted during the period under review. REASONS FOR REMAND While further delay is regrettable, additional development is necessary prior to adjudication of the Veteran’s remaining claims. In a September 2018, the Board remanded the Veteran’s claim of entitlement to an increased evaluation for service-connected degenerative disc disease of the lumbar spine for additional development. Specifically, the Board instructed the RO to schedule the Veteran for a VA examination to assess the severity of the service-connected degenerative disc disease of the lumbar spine. Note 1 to the general rating formula for diseases and injuries of the spine provides that associated objective neurological abnormalities are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a. The Board finds that adjudication of the radiculopathy claim would be premature at this stage because the scheduled VA examination may offer material evidence related to the neurological manifestations of the service-connected low back disability. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). Additionally, as the Veteran’s pending increased rating claim for a low back disability and neurological manifestations affect the outcome of the claim of entitlement to a TDIU, a final decision on that issue would, at this point, be premature as well. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). Thus, that claim is also being remanded. The matters are REMANDED for the following: After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If the benefits sought on appeal remain denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. S. C. KREMBS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Ian Altendorfer, Associate Counsel