Citation Nr: 21004924 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 15-29 597 DATE: January 28, 2021 ORDER Entitlement to an initial 70 percent rating, but not higher, for a depressive disorder is granted. REMANDED Entitlement to service connection for hearing loss is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran’s depressive disorder symptoms have caused occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but not higher, for a depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.130, Diagnostic Code 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active military service from July 1974 to July 1976. In January 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing on the issue of service connection for hearing loss. A transcript of that hearing is of record. The issue of entitlement to service connection for hearing loss is back before the Board of Veterans’ Appeals (Board) following a remand in August 2018; the issues of entitlement to a higher rating for depressive disorder and to a TDIU are back before the Board following a remand in June 2019. 1. Entitlement to an initial rating in excess of 50 percent for depressive disorder Disability ratings are determined by applying the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, 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. The Veteran is appealing the original assignment of a disability evaluation following an award of service connection for other specified depressive disorder. As such, it is not the present level of disability which is of primary importance, but rather the entire period is to be considered to ensure that consideration is given to the possibility of staged ratings; that is, separate ratings for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999). 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 70 percent or higher. A 50 percent rating is warranted for 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 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for 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 if 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. VA treatment records indicate that in September 2018, the Veteran’s mood was dysthymic and anxious, his affect was irritable, and he displayed mild psychomotor agitation; he denied acute suicidal ideation but had passive suicidal thoughts from time to time without plans. Insight and judgment were fair and cognition was intact. Over the past two weeks he reported experiencing the following symptoms almost every day: little interest or pleasure in doing things; feeling down, depressed, or hopeless; trouble falling or staying asleep, or sleeping too much; feeling tired or having little energy; trouble concentrating on things; feeling anxious; and feeling irritable. He also reported thoughts that he would be better off dead or of hurting himself in some way “several days” during the past two weeks. The Veteran reported that these problems made it extremely difficulty for him to do his “work, take care of things at home or get along with other people.” In November 2018, the Veteran was “’not in a good mood’ and had an outburst ‘not violent’ in which he was ‘very argumentative.’" He stated that his relationship with wife had not gotten any better. He had trouble falling asleep. He was restless and fidgety. He endorsed thoughts of death and self-harm, but cited to his family as protective factor preventing advancement to plan/intent for self-harm. In December 2018, the Veteran’s mood was “low” and irritable, he had poor self-esteem, and suicidal ideation. Of record are two letters from Dr. K.U., one dated in March 2017 and one dated in December 2019. In the March 2017 letter, Dr. K.U. provided a diagnosis of major depressive disorder. The letter noted that the Veteran had been a client since January 2017 and that on March 3, 2017, she conducted a formal evaluation of his mental health. Dr. K.U. noted that the Veteran had a depressed mood nearly all day, every day; self-isolation, irritability, loss of motivation, anxiety, loss of concentration, hopelessness, and problems with sleep and appetite. Dr. K.U. noted that the Veteran lost focus easily which prevented him from completing simple tasks and that as a result of his inability to focus and concentrate, his wife handled the personal business affairs for the family. In the December 2019 letter, Dr. K.U. noted that the Veteran had been a client since March 2017. Dr. K.U. noted that the Veteran’s tinnitus caused sadness, anger, frustration, and isolation from others and that he was unemployable due to his struggles with focus, concentration, memory loss, explosive anger, irritability, sleeplessness, self-isolation, problems with interacting effectively with others, and difficulty with understanding complex instructions. The Veteran underwent VA examinations in April 2017 and February 2020. The April 2017 VA examination report noted a diagnosis of other specified depressive disorder with symptoms of depressed mood, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The examiner noted that it appeared that the Veteran had some notable problematic personality traits which explained at least some of his claimed symptoms. The Veteran denied recurrent thoughts of death, passive/active suicidal ideations, and suicidal intentions. Mental status examination was essentially normal although the Veteran presented as somewhat passive aggressive irritable at times and that there was some evidence of mild embellishment of both mental health symptoms and related functional impairments both during the interview and on testing. The Veteran specifically denied recent suicidal ideations or intentions. The February 2020 VA examination report noted that other specified depressive disorder appeared to be the most accurate diagnosis. The examiner noted that the Veteran had periods of depressed moods, low energy levels, and poor sleep patterns; that he reported a prominence of anger which was not related to depression but to a personality disorder. The examiner noted that the Veteran’s response pattern spoke to his desire to present himself in an unfavorable light. The examiner noted that the Veteran reported hearing voices of sounds in his head but noted that despite his report of psychotic symptoms, his thought processing was logical, goal directed and did not evidence periods of distractions due to internal stimuli. The examiner noted that the Veteran was endorsing symptoms that did not exist suggesting an attempt to exaggerate psychiatric symptoms and that he did not appear to be suffering from a psychotic illness. The examiner also noted that the Veteran had some symptoms of depression but that he had a tendency to exaggerate symptoms and present himself in an unfavorable light and that due to the exaggeration of symptoms, the exact severity, frequency and duration of depression was unable to be accurately attained. The examiner noted that the Veteran’s depressive symptoms were transient and mild and have not required inpatient treatment or involuntary admission to suggest symptoms at a severe level. The examiner finally noted that the Veteran appeared to have some low moods but had been able to sustain a long-term marriage and raise his children without difficulty. Also of record is a February 2020 VA outpatient note wherein the attending psychiatrist noted that the Veteran again presented with fairly severe symptoms of depression and that although his previous diagnosis of unspecified depressive disorder, he met the criteria for a major depressive episode at this point. His symptoms included poor sleep, intermittent appetite, low energy, sad/irritable mood, angry outbursts, difficulty completing tasks, low to no interest, and anxious thoughts. He endorsed passive, fleeting thoughts that he might be better off dead without intent or plan. He also endorsed passive, fleeting thoughts of hurting others without any intent (usually family members in the context of familial conflict, though he strongly denied intention or lethal means to harm anyone). Given the severity of his symptoms, the doctor stressed that voluntary admission to the hospital for depression was an option he should consider. However, the Veteran believed that hospitalization will lead to him being labeled “crazy.” In a letter dated in June 2017 from the Veteran’s wife, she noted that the Veteran had periods of outburst and was very short tempered; he was verbally abusive, and he screamed and shouted when he could not get his way. The Veteran’s wife noted that the Veteran had difficulty concentrating and focusing on task. VA and private treatment records, as well as VA examinations, demonstrate that the Veteran’s depressive disorder has been manifested by several symptoms associated with a 70 percent rating, including suicidal ideation, impaired impulse control, difficulty in adapting to stressful circumstances, and near-continuous depression affecting his ability to function independently, appropriately and effectively. He also had symptoms that are not listed with a specific rating, such as poor appetite. The Board notes that the two VA examiners suggested that the Veteran had a tendency to exaggerate his symptoms. However, his reported symptoms have been consistent throughout his VA treatment records. The U.S. Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017); (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas"). As such, resolving reasonable doubt in the Veteran's favor, because he displays suicidal ideation, he has more nearly approximated the criteria for a 70 percent rating for his service-connected depressive disorder. See 38 C.F.R. §§ 3.102, 4.7. However, a 100 percent disability rating is not warranted as the symptoms associated with Veteran's psychiatric disorder do not result in total occupational and social impairment. To the contrary, he has been married to his wife for more than 30 years. Accordingly, the preponderance of the evidence weighs against entitlement to a disability rating in excess of 70 percent for the Veteran's depressive disorder. REASONS FOR REMAND 2. Entitlement to service connection for hearing loss Unfortunately, there has not been substantial compliance with the Board’s previous remand directives. In August 2018, the Board remanded the claim for additional development. Specifically, the Board directed that a new VA medical opinion be obtained which addressed whether there is clear and unmistakable (obvious or manifest) evidence that the increase in the Veteran’s pre-existing right ear hearing loss during active service was due to its natural progression. The Board directed that the examiner must address the fact that there was a change of 20 decibels at 4000 Hertz between enlistment and separation, going from 25 decibels at enlistment, to 45 decibels at separation. The Board also directed that the examiner must address the Veteran’s in-service noise exposure from firearms training. The Veteran was provided a VA examination in September 2020. The examiner found that right ear hearing loss existed prior to service, that there was NOT a permanent positive threshold shift (worse than reference threshold) greater than normal measurement variability at any frequency between 500 and 6000 HZ for the right ear during service, and that right ear hearing improved during service. The examiner also found that the Veteran’s left ear hearing loss was NOT at least as likely as not (50% probability or greater) caused by or a result of an event in military service and noted, “Records indicate only a moderate probability of hazardous noise exposure during service (MOS of military police), the veteran’s current hearing loss lacks a high frequency notched or sloping configuration that is highly correlated with noise induced hearing loss, records lack evidence of threshold shifts or objective evidence beyond MOS to indicate that hearing loss is related to service.” The examiner did not specifically address the fact that there was a change of 20 decibels at 4000 Hertz between enlistment and separation, going from 25 decibels at enlistment to 45 decibels at separation, or the Veteran’s in-service noise exposure from firearms training. As such, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 3. Entitlement to a TDIU Because a decision on the remanded issue of entitlement to service connection for hearing loss could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. As such, a remand of the issue of entitlement to a TDIU is also required. The matters are REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Obtain a new VA medical opinion regarding direct service connection for the Veteran’s bilateral hearing loss, as specified below. (a) Right ear: Whether there is clear and unmistakable (obvious or manifest) evidence that the increase in the Veteran’s pre-existing right ear hearing loss during active service was due to its natural progression. In this regard, the examiner must address the fact that there was a change of 20 decibels at 4000 Hertz between enlistment and separation, going from 25 decibels at enlistment to 45 decibels at separation. The examiner must also address the Veteran’s in-service noise exposure from firearms training. (b) Left ear: Whether it is at least as likely as not (50% probability or more) that the Veteran’s left ear hearing loss is related to active service, including noise exposure from firearms training. Although the Veteran’s left ear hearing was normal at separation, the examiner must discuss whether his current left ear hearing loss may be related to in-service noise exposure from firearms training, especially in light of the April 2014 VA opinion finding that the Veteran’s tinnitus is related to such noise exposure. (Continued on the next page)   The examiner must provide a complete explanation in support of the conclusions reached. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.