Citation Nr: 21001805 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 19-00 355A DATE: January 11, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for depressive disorder is denied. REMANDED Entitlement to service connection for kidney disease is remanded. Entitlement to service connection for gout is remanded. FINDING OF FACT The severity, frequency, and duration of the depressive disorder symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 70 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from February 1966 to January 1970. These matters are before the Board of Veterans’ Appeals (Board) on appeal from September 2018 and January 2019 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled a Board hearing for the appeal in May 2020. In April 2020, the Veteran withdrew his hearing request. The Veteran has a pending claim for an earlier effective date for a total disability rating based on individual unemployability (TDIU) in the modernized review system, also known as the Appeals Modernization Act (AMA). In March 2020, the Veteran submitted a VA Form 20-0996 and selected Higher-Level Review (HLR) lane for review of a February 2020 rating decision. An HLR decision was issued in March 2020, and the Veteran was provided a VA Form 20-0998. In April 2020, the Veteran’s representative sought the TDIU claim to be considered as part and parcel of the claim for depressive disorder. However, as the claim is under the AMA appeal stream, the Veteran needs to select a path in the VA Form 20-0998 for further review of the HLR decision. The Board has no jurisdiction over the matter at this time. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 1. Entitlement to an initial rating in excess of 70 percent for depressive disorder is denied. The Veteran contends that he is entitled to a rating higher than 70 percent for his depressive disorder. In a January 2019 rating decision, the Veteran was service connected for depressive disorder, as secondary to the service-connected coronary artery disease, at 30 percent rating effective October 17, 2018. In a June 2019 rating decision, the RO increased the rating to 70 percent effective October 17, 2018. The Veteran timely appealed the decision to the Board. The appeal period before the Board begins on October 17, 2018, the effective date of service connection. 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 issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 100 percent. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability rating of 100 percent. 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 the level of impairment associated with a 70 percent rating. 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. A 100 percent rating is assigned for 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. The Veteran underwent a VA examination in December 2018. The Veteran was diagnosed with depressive disorder due to coronary heart disease. The Veteran reported he lives with his wife of 50 years. The Veteran reported he has good relationships with his two adult children and two grandchildren. He stated he is “pretty sociable” and enjoys spending time with family. He reported he likes to cook and travel, although he is no longer able to do much traveling. He reported he walks in the mall daily. He reported that after separation from service, he worked at IBM as a service representative for 40 years before retiring in 2015. The Veteran denied current psychotropic medications. He denied any history of psychiatric hospitalization or outpatient psychotherapy. He denied any history of suicide attempts, and he denied current suicidal plan or intent. He reported his current concerns included depression, uncomfortable dreams, anger, and fatigue. The examiner noted the following symptoms that applied to the Veteran’s depressive disorder: depressed mood; mild memory loss, such as forgetting names, directions or recent events; and near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. On objective behavioral observation, the Veteran appeared alert and oriented in all spheres. He was well-groomed with good hygiene. The Veteran was generally interactive throughout the entire evaluation with adequate eye contact. His thought processes were intact with no history or current evidence of audiovisual hallucinations or delusions. His speech was normal in rate, rhythm, and volume. There was no evidence of current psychomotor agitation or retardation. His affect appeared mildly anxious. The examiner noted the Veteran was capable of managing his financial affairs. The examiner summarized the Veteran’s level of occupational and social impairment with regards to all mental diagnoses as “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.” In a letter received in January 2019, the Veteran’s daughter stated that she noticed some years back how her father’s upbeat and social personality started to swing to a quiet and solemn mood after his diagnosis of arteriosclerosis. She stated he would have periods of being very quiet and withdrawn. She stated that in the past year, the Veteran had mentioned experiencing a reoccurring nightmare of being re-enlisted and fighting in the Vietnam war. She stated the dreams interrupted his rest, leaving him feeling anxious and depressed, and unable to go back to sleep. She stated these ‘bouts’ have impacted his time with family and friends. In a letter received in March 2019, the Veteran’s sister stated that she has noticed a drastic change in her brother’s personality and disposition over the years. She stated that the Veteran experienced periods of mood swings and irritability in social settings. She stated the Veteran would incessantly interrupt someone’s conversation and begin to speak, sometimes rambling incoherently. She stated that at other times, the Veteran ‘mentally zones out’ as if no one else is in the room. In a May 2020 statement, the Veteran stated he often felt he heard his name being called by someone at least 2-3 times a day. He stated he constantly drools, and his goatee stays wet. He stated he is constantly suspicious of others and is fearful of worst-case scenario situations. He stated he sometimes zones out and lose track of time, and has no clue how long he was zoned out. He stated that if he became irritated, he becomes silent and has to work though the lump in his throat to avoid becoming violent. The Veteran also stated that he stopped working in 2015 because of the toll the physical and mental aspects of his employment was taking on him. He stated he worked for IBM, exchanging computers overnight for large corporations. He stated the job was very physically demanding and fast paced, and involved a lot of physical movement around rather large offices. He also stated the mental aspect of work was also very daunting and overbearing. He stated he was having severe anxiety at home and on the job, and that he was having trouble concentrating on the job. After careful review of the evidentiary record, 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 December 2018 VA examination noted the Veteran’s depressive disorder was manifested by one symptom associated with a 70 percent rating, which was near-continuous panic or depression affecting the ability to function independently, appropriately and effectively. The examiner also noted symptoms associated with less severe degree of impairment such as depressed mood and mild memory loss; these symptoms are associated with 30 percent rating. The Veteran also reported he experienced uncomfortable dreams and anger. Uncomfortable dreams are similar to chronic sleep impairment contemplated by a 30 percent rating, and anger, without showing of unprovoked irritability with periods of violence, is similar to disturbances of motivation and mood contemplated by a 50 percent rating. Overall, the symptoms noted in the December 2018 examination depict a disability picture that falls very short of a 100 percent rating under Diagnostic Code 9434. Moreover, lay statements from the Veteran and his family members do not support a 100 percent rating. The Veteran’s daughter reported the Veteran is very quiet and withdrawn, and that he experienced reoccurring nightmares related to service. These are similar to depressed mood, anxiety, and chronic sleep impairment contemplated by a 30 percent rating and disturbances of mood contemplated by a 50 percent rating. The Veteran’s sister stated the Veteran experienced periods of mood swings and irritability, and that the Veteran would interrupt someone’s conversation. The Veteran also stated that if he became irritated, he becomes silent and has to work though the lump in his throat to avoid becoming violent. These symptoms are similar to disturbances of motivation and mood contemplated by a 50 percent rating. The Veteran stated he is constantly suspicious of others and fearful of worst-case scenario situations. These are similar to suspiciousness and anxiety contemplated by a 30 percent rating. The Veteran stated he often feels that someone calls his name at least 2-3 times a day. However, his mishearing his name does not appear tantamount to persistent delusions or hallucinations, and the December 2018 examiner noted the Veteran’s thought processes were intact with no history or current evidence of audiovisual hallucinations or delusions. Further, while the Veteran has been granted a TDIU from March 2019 this was awarded by the RO based on his service-connected coronary artery disease disability per the February 2020 rating decision. The VA examiner in December 2018, who reviewed the claims file, interview the Veteran and conducted a clinical evaluation, opined that his overall level of impairment (social and occupational) is best characterized as “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.” This assessment does not support a finding that there is total occupational impairment due to the service-connected depressive disorder. The evidence also does not reflect total social impairment at any time during the appeal period. The Veteran has been married to his wife for 50 years and he described it as a good marriage. He stated he has good relationships with his children and grandchildren, and that he is “pretty sociable.” He reported he enjoys spending time with family, likes to cook and travel, and walks at the mall daily. While the Veteran’s sister noted the Veteran experienced periods of mood swings and irritability, she also noted the Veteran engaged in conversations in social settings. Indeed, the December 2018 examiner summarized the Veteran’s level of occupational and social impairment as 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; this level of impairment is commensurate with a 10 percent rating under Diagnostic Code 9434. Lastly, the record does not contain any evidence of symptoms such as gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, or memory loss for names of close relatives, own occupation, or own name, as is considered for a 100 percent disability rating for the depressive disorder. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran’s symptoms resulted in the level of impairment required for a 100 percent rating. At no point has his depressive disorder more nearly approximated the criteria for a 100 percent rating, and the assignment of staged ratings is not warranted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.130; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); Hart v. Mansfield, 21 Vet. App. 505 (2007). REASONS FOR REMAND 1. Entitlement to service connection for kidney disease is remanded. 2. Entitlement to service connection for gout is remanded. The Veteran seeks service connection for his gout and kidney disease as secondary to his service-connected coronary artery disease. See correspondence received on April 25, 2020. The Veteran underwent a VA examination for his kidney condition in August 2018. The Veteran was diagnosed with cystic kidney disease, chronic kidney disease (CKD), and renal artery stenosis (RAS). The examiner opined that the Veteran’s cystic kidney disease, CKD, and RAS are less likely than not incurred by his coronary artery disease. The examiner noted that coronary artery disease is a disease of the cardiac vessels most often due to atherosclerotic plaques. She explained that while these same plaques incur risk of developing RAS, coronary artery disease does not cause RAS. She added that RAS can and has led to CKD, which can lead to cystic kidney disease. Although the opinion is probative, the examiner did not opine as to whether the kidney condition was aggravated by the Veteran’s coronary artery disease. 38 C.F.R. § 3.310. The examiner’s rationale only addressed whether the kidney disease was proximately due to the coronary artery disease, and did not discuss what impact the Veteran’s coronary artery disease would have on his kidney. An addendum opinion is required. Further, the evidence of record does not show a medical opinion as to whether the Veteran’s gout is proximately due to or aggravated by the Veteran’s coronary artery disease. A medical opinion must be obtained. The record also includes two medical articles submitted by the Veteran’s representative in April 2020. See medical articles received on April 29, 2020, titled, “Incident Hospitalization with Major Cardiovascular Diseases and Subsequent Risk of ESKD: Implications for Cardiorenal Syndrome” and “Uric Acid and Coronary Artery Disease, Two Sides of a Single Coin: A Determinant of Antioxidant System or a Factor in Metabolic Syndrome.” The representative asserted that the first medical article notes relationship between kidney disease and cardiovascular disease. See April 2020 correspondence. The representative asserted that the second article notes patients with coronary artery disease had increased uric acid levels, and that gout is caused by urate crystals accumulating in a joint. Id. The two articles should be reviewed and discussed when proffering the medical opinions. The matters are REMANDED for the following action: Obtain medical opinions from an appropriate clinician regarding: a) whether the Veteran’s kidney disease is at least as likely as not aggravated beyond its natural progression by his service-connected coronary artery disease; b) whether the Veteran’s gout is at least as likely as not proximately due to his service-connected coronary artery disease; and c) whether the Veteran’s gout is at least as likely as not aggravated beyond its natural progression by his service-connected coronary artery disease. The claims file must be reviewed by the examiner, including the medical articles submitted by the Veteran’s representative in April 2020. The need for an in-person examination is left to the examiner’s discretion. A fully-explained rationale for the requested opinions should be provided. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jake Choi, 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.