Citation Nr: 20002864 Decision Date: 01/14/20 Archive Date: 01/13/20 DOCKET NO. 13-27 239 DATE: January 14, 2020 ORDER Entitlement to an initial rating, over 30 percent, for an unspecified depressive disorder, from December 23, 2010 to January 29, 2012, is denied. Entitlement to 70 percent rating for an unspecified depressive disorder, effective January 30, 2012, is granted subject to the laws and regulations governing the award of monetary benefits. REMANDED Entitlement to service connection for sleep apnea, to include secondary to residuals of a left knee injury with arthritis, is remanded. Entitlement to service connection for atrial fibrillation with a history of congestive heart failure, to include secondary to residuals of a left knee injury with arthritis, is remanded. Entitlement to service connection for hypertension, to include secondary to residuals of a left knee injury with arthritis, is remanded. FINDINGS OF FACT 1. Prior to January 30, 2012, the Veteran’s depressive disorder was not manifested by occupational and social impairment with reduced reliability and productivity. 2. The Veteran endorsed suicidal ideation during a January 2012 VA examination. 3. The Veteran reported attempting suicide in December 2013 and continued to have intermittent suicidal ideation during follow up VA examination. 4. Since January 30, 2012, the Veteran’s depressive disorder has been manifested by no more than social and occupational impairment with deficiencies in most areas; it has not been manifested by total social and occupational impairment. CONCLUSIONS OF LAW 1. Prior to January 30, 2012, the criteria for a rating greater than 30 percent for an unspecified depressive disorder were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9435. 2. The criteria for entitlement to a rating of 70 percent, but no more, for an unspecified depressive disorder, effective January 30, 2012, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.7, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran performed active duty from May 1970 to September 1970, and April 1989 to May 1989.The Veteran also served in the National Guard.   This matter comes before the Board of Veterans’ Appeals (Board) on appeal from February and March 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing in January 2016 before the undersigned. A copy of the transcript has been associated with the Veteran’s electronic claims file. The Board denied these claims in a February 2018 decision. The Veteran appealed, and in December 2018, the United States Court of Appeals for Veterans Claims granted a joint motion for partial remand. Increased Ratings The Veteran contends that his unspecified depressive disorder was more severe than the assigned rating reflects. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C. § 5107(b).   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 Veteran’s unspecified depressive disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 38 C.F.R. § 4.130, Diagnostic Code 9435. 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. Id. 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. Id. A 100 percent rating is assigned when symptoms such 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 cause total occupational and social impairment. Id. Period from December 23, 2010 to January 29, 2012 In a March 2012 rating decision the Veteran was assigned a 30 percent evaluation for a depressive disorder, effective December 23, 2010. After reviewing the evidence of record the Board finds that the Veteran’s acquired psychiatric disorder, now classified as an unspecific depressive disorder, does not warrant a rating higher than 30 percent prior to January 30, 2012. In this regard, the evidence preponderates against finding that it resulted in occupational and social impairment with reduced reliability and productivity. In October 2010 the Veteran sought treatment for depression exacerbated by psychosocial stressors. In December 2010, the Veteran was described as casually dressed and groomed appropriate for the season. He used moderate direct eye contact. His thought process was linear, and his speech was clear and coherent. The Veteran denied suicidal and homicidal ideations, as well as audio-visual hallucinations. He noted a “down spiral” for the past two years due to employment, financial, self-esteem, and health issues. His depressive symptoms were described as low motivation and low self-esteem, with a quick temper, racing thoughts, and stress. He noted a supportive relationship with his family and children. In January 2011, the Veteran’s spouse described the claimant as being in a deep depression and often staring into outer space. She stated that he did not have any interest in things going on around him. In an October 2011 statement, the Veteran described having deep depression and experiencing anxiety. He stated that he was unable to control his actions and feelings and discussed the need for anger management. After a review of the record from December 23, 2010 to January 29, 2012, the Board finds that the clinical record preponderates against entitlement to a 50 percent rating. Treatment records do not indicate that the Veteran experienced occupational and social impairment with reduced reliability and productivity. The evidence showed a lack of motivation, irritability, and sleep impairment, but the appellant was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation, which is consistent with mental status examinations in VA treatment records. The evidence did not indicate symptoms such as difficulty understanding complex commands, panic attacks, memory impairment, or impaired abstract thinking. The Veteran reported a good relationship with his wife and children. Although, the Veteran did mention disturbances of motivation and mood, which are contemplated by the 50 percent rating, overall the Board finds the level of impairment caused by the appellant’s symptoms to more closely approximate the level associated with a 30 percent rating. Hence, the Board finds that the preponderance of the evidence is against entitlement to an increased rating for depressive disorder during the period in question. Thus, the claim is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Since January 30, 2012 The Board concludes that since January 30, 2012, the Veteran’s symptoms more closely approximated the symptoms associated with a 70 percent rating and resulted in a level of impairment that most closely approximated that rating. The Board also finds, however, that since January 30, 2012, the appellant’s symptoms have not caused the level of impairment required for a disability rating of 100 percent. VA and private treatment records, the January 30, 2012 VA examination, and the Veteran’s lay statements show that the appellant’s depressive disorder was manifested by symptoms associated with a 50 percent rating (symptoms of disturbances in motivation and mood, and difficulty in establishing and maintaining relationships), and symptoms associated with a 70 percent rating (difficulty adapting to stressful circumstances, and suicidal ideation). The Veteran reported attempting suicide in December 2013 and his VA treatment records continued to report suicidal ideations. The Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. The Veteran reported that these symptoms were not present daily, and he was found to be a low risk for suicide following the December 2013 attempt. Suicidal ideation is similar to suffering from a persistent danger of self-harm, i.e., a symptom contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran’s suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. Further, there is no evidence that the appellant’s service-connected psychiatric disorder is manifested by such symptoms as persistent delusions or hallucinations; grossly inappropriate behavior; an intermittent inability to perform activities of daily living; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment Hence, while the Veteran experienced occupational and social impairment with reduced reliability and productivity with deficiencies in most areas, he has been generally able to perform the activities of daily living and is repeatedly described as well-groomed and without difficulties maintaining hygiene. He is also reported to be fully oriented and while he experiences some memory loss issues, he is not shown to have suffered such a severe loss that he cannot recall the names of close relatives or himself. As the preponderance of the evidence is against finding that the Veteran's unspecified depressive disorder meets or more nearly approximates total occupational and social impairment, entitlement to a 100 percent rating is denied and the doctrine of reasonable doubt is not for application. 38 C.F.R. § 3.102. REASONS FOR REMAND The appellant claims entitlement to service connection for sleep apnea, atrial fibrillation, and hypertension to include secondary to residuals of a left knee injury with arthritis. He specifically maintains that he experienced weight gain as a direct result of his knee disability, and in turn this weight gain caused or aggravated his sleep apnea, atrial fibrillation, and hypertension. The Board observes that while direct service connection may not be granted for obesity, obesity may act as an “intermediate step” to establish proximate causation between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a); VAOPGCPREC 1-2017 at 7-9. To establish that a service-connected disability proximately caused a current disability through obesity, the adjudicator must determine: whether the service-connected disability caused the veteran to become obese; and if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and if so, whether the current disability would not have occurred but for obesity caused by the service-connected disability. Id. at 9-10. If all of the above questions are answered in the affirmative, then the current disability may be service connected on a secondary basis. Id. at 10. Various medical opinions have discussed the Veteran’s left knee injury as a factor in his inability to lose weight. These opinions have not, however, directly addressed whether the Veteran’s service-connected disabilities, to include residuals of a left knee injury with arthritis, caused obesity in the first place. Further, the Veteran’s medical records reflect that the Veteran was overweight prior to his knee injury and a VA examiner noted that “morbid obesity is an eating disorder and is caused by overeating.” The Board finds that remand is required because there are conflicting accounts as to the cause of the Veteran’s obesity, and because there has been no comment on all requirements for service connection outlined in VAOPGCPREC 1-2017. A medical opinion is required to address whether a service-connected disability caused the Veteran to become obese. The question is not one of aggravation or comorbid cause, but whether there is a direct causal link between the Veteran’s service-connected disabilities and his obesity. If that question is answered in the affirmative, then the examiner must move on to the remaining questions and address them. Because a decision on the cause of the Veteran’s obesity significantly impacts a decision on the issues of entitlement to service connection for sleep apnea, atrial fibrillation, and hypertension, the issues are inextricably intertwined. A remand of the claims for issues of entitlement to service connection for sleep apnea, atrial fibrillation, and hypertension is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate physician regarding whether a service-connected disability caused the Veteran to become obese; and if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability; and if so whether the current disability would not have occurred but for obesity caused by the service-connected disability. A complete and fully explanatory rationale must be provided for any opinion offered. If any opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed training or expertise. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Joseph Montanye, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.