Citation Nr: 21005097 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 11-25 900 DATE: January 29, 2021 ORDER Entitlement to an increased evaluation in excess of 10 percent for recurrent depressive disorder with unspecified anxiety disorder from October 7, 2010 to November 14, 2016, is denied. Entitlement to an increased evaluation in excess of 30 percent for recurrent depressive disorder with unspecified anxiety disorder from November 14, 2016 to August 20, 2018, is denied. Entitlement to an increased evaluation in excess of 70 percent for recurrent depressive disorder with unspecified anxiety disorder from August 20, 2018, is denied. REMANDED Entitlement to an increased evaluation in excess of 30 percent for right knee traumatic arthritis, status-post total knee replacement (excluding period of temporary total rating from September 12, 2016 to November 1, 2017) is remanded. Entitlement to an increased evaluation in excess of 30 percent for left knee traumatic arthritis, status-post total knee replacement (excluding period of temporary total rating from September 12, 2016 to November 1, 2017) is remanded. Entitlement to service connection for obstructive sleep apnea as secondary to recurrent depressive disorder with unspecified anxiety disorder is remanded. FINDINGS OF FACT 1. The evidence from October 7, 2010 to November 14, 2016 show the symptoms of the Veteran’s recurrent depressive disorder with unspecified anxiety disorder did not result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. The evidence from November 14, 2016 to August 20, 2018 shows that the Veteran’s recurrent depressive disorder with unspecified anxiety disorder produces occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (characterized by symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events and disturbances of motivation and mood), but without occupational and social impairment with reduced reliability and productivity at any time during the period. 3. The evidence from August 20, 2018 shows that the Veteran’s recurrent depressive disorder with unspecified anxiety disorder has not more nearly approximated total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for recurrent depressive disorder with unspecified anxiety disorder from October 7, 2010 to November 14, 2016, have not been met. 38 U.S.C. § 1155, 5103, 5107 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, DC 9440. 2. The criteria for a rating in excess of 30 percent for recurrent depressive disorder with unspecified anxiety disorder from November 14, 2016 to August 20, 2018, have not been met. 38 U.S.C. § 1155, 5103, 5107 38 C.F.R. § 3.102, 3.159, 4.7, 4.124(a), 4.130, DC 9440. 3. The criteria for a rating in excess of 70 percent for recurrent depressive disorder with unspecified anxiety disorder from August 20, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.130, Code 9400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in active duty service with the Marine Corps from March 1974 to March 1977. This matter is on appeal from May 2010, May 2012, and April 2014 rating decisions. The Veteran was afforded a July 2018 hearing before the undersigned Judge. A transcript of the hearing has been associated with the claims record. During the pendency of the appeal, a March 2017 rating decision increased the Veteran’s evaluation for recurrent depressive disorder with unspecified anxiety disorder to 30 percent effective from November 14, 2016. A September 2020 rating decision increased the Veteran’s evaluation for recurrent depressive disorder with unspecified anxiety disorder to 70 percent effective from August 20, 2018. As this increase did not constitute a full grant of the benefit sought for the entire appeal period, the Veteran’s claim for a higher evaluation remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). As such, the issues on appeal before the Board have been recharacterized to show an appeal for an increased evaluation in excess of 10 percent for recurrent depressive disorder with unspecified anxiety disorder from October 7, 2010 to November 14, 2016; an increased evaluation in excess of 30 percent for recurrent depressive disorder with unspecified anxiety disorder from November 14, 2016 to August 20, 2018; and an increased evaluation in excess of 70 percent for recurrent depressive disorder with unspecified anxiety disorder from August 20, 2018. The Board remanded this appeal in September 2015 and November 2018 for additional development. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 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 C.F.R. § 4.3. The Board will consider whether separate ratings may 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, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Recurrent depressive disorder with unspecified anxiety disorder The Veteran is currently service connected for recurrent depressive disorder with unspecified anxiety disorder evaluated at 10 percent from October 7, 2010 to November 14, 2016 under Diagnostic code 9440; 30 percent from November 14, 2016 to August 20, 2018 under Diagnostic code 9440; and 70 percent from August 20, 2018 under Diagnostic code 9400. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustments during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on the social and occupational impairment, rather than solely on the examiner’s assessment of the level of disability at the time of examination. The rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. Mental disorders are all contemplated under the general rating formula for mental disorders, contemplating a zero percent, 10 percent, 30 percent, 50 percent, 70 percent and 100 percent rating 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). 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 evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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); and inability to establish and maintain effective relationships. Lastly, a 100 percent evaluation is warranted for total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. See 38 C.F.R. § 4.130, DC 9400. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms, a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Review of the medical treatment record shows records from November 2010 to January 2012 the Veteran reported discouragement due to weight gain. The Veteran stated that he was concerned with decreased energy, increased sensitivity to sad movies and being tearful at times. The Veteran stated that he had a supportive wife and denied suicidal ideation. In April 2012 the Veteran stated that his wife was being evaluated for a neurological condition or possible multiple sclerosis; the Veteran reported being an “emotional wreck” but denied suicidal ideation. The Veteran was afforded a May 2012 VA examination. The Veteran reported being married for the past 40 years but stated that he had not been sexually active with his wife because “most of the time I’m hurting and don’t have any interest in anything.” The Veteran stated he had three adult children but had not spoken to them in a year “because of a situation that happened about a year ago – my daughter called me up and cussed me on the phone and told me not to call her.” The Veteran stated that he got along okay with people outside of the family. The Veteran reported that he had been out of work for the past years but had previously worked as a counselor with children for 10 years before stopping work to take care of his wife. The Veteran noted that when he returned “the job wasn’t available – I drew unemployment for a little while and then that stopped” and was currently not working due to physical pain. The Veteran stated that “nothing seems to make a difference to me anymore – I used to be pretty outgoing and involved in things and now I’m not involved in nothing.” The Veteran stated that he was miserable all the time and due to limitations in mobility, spends most of his time lying in bed or in a chair. The Veteran noted that it wasn’t fair to his wife and “she’s better off without me…I’m just a mess wright now…even my grandkids want to know what’s wrong with me because I don’t play with them like I used to.” The examiner found the Veteran with symptoms of depressed mood; disturbance of motivation and mood; and difficulty in establishing and maintaining relationships. The Veteran was observed to be alert and oriented; the Veteran demonstrated normal but somewhat slow and monotonous speech. The Veteran’s mood was presented as mildly to moderately depressed with generally restricted affect. The examiner did not observe any impairment in the Veteran’s attention, concentration or memory. The Veteran denied suicidal and homicidal ideation. The examiner found the Veteran to be formally diagnosed with a mental condition but with symptoms not severe enough to interfere with occupational functioning and relatively mild impairment in current social functioning. In a June 2012 statement, the Veteran’s representative stated the Veteran felt demoralized that he must use a wheelchair or walking aid to be mobile. The representative stated the Veteran had chronic depressed mood and feelings of hopelessness; was easily irritated; and inconsistent and easily disturbed sleep. The Veteran reported that he did not socialize outside of his immediate family and remained housebound because of his issues with mobility. In September 2012 the Veteran stated that he was less angry but reported a concern with increased sensitivity to sad movies, tearful at times and anhedonia; the Veteran reported a supportive wife and denied suicidal ideation. In October 2013 the Veteran reported worsening depression, pain, headaches and memory problems; the Veteran denied feeling suicidal. In a May 2014 representative statement, the representative asserted the Veteran’s mental condition was severe. The representative stated that the Veteran found it difficult to get out of bed and seek treatment when he was extremely depressed; the Veteran stated that all he wanted to do is sit at home and not associate with anyone. The representative stated that the Veteran self-medicates and rests to alleviate his increased symptoms; the representative noted that the Veteran did not seek treatment on a regular basis but asserted the lack of treatment “actually speaks to the increased level of [the Veteran’s] occupational and social functioning.” In October 2014 the Veteran reported spending most of his time in a bed or chair; the Veteran stated that praying for church members and daily devotions with his wife were his favorite times of the day. The Veteran stated that he wished he could do more but his pain and weight limit this. In April 2015 the Veteran reported spending 16 hours a day in his bed; the Veteran stated that he only leaves the house once a week to go to church. The Veteran stated that he felt useless and contributed little to his family; however, the Veteran denied suicidal ideation and stated that he “could not stand before the Lord if he did.” In an April 2016 mental health visit, the Veteran reported that his medication was recently changed but “I don’t see a difference.” The treating provider noted the Veteran’s mood was better when last seen; however, the provider did note the Veteran “remains significantly depressed but not as intense.” The Veteran stated that he was not motivated to do much other than attend church and occasionally visit a few neighbors; the Veteran stated, “I like to sleep most of the day…I feel numb and don’t care about things.” The Veteran was observed to be casually dressed, alert and oriented. The Veteran’s mood was found to be dysphoric with limited range of affect congruent to mood. The Veteran demonstrated logical thought and grossly intact memory, attention, concentration, and judgement. The Veteran denied hallucination, suicidal or homicidal ideation. The Veteran was afforded a May 2016 VA examination. The Veteran reported being married for 42 years and described his relationship as okay. The Veteran reported an okay relationship with his three adult children, mother and siblings. The Veteran also stated that he did okay with people outside of the family. Regarding his work history, the Veteran provided the same history as reported at his May 2012 examination where he was currently not working but previously worked 10 years as a counselor but later stopped due to his wife falling ill and the job not being available when he returned. The Veteran was observed to be well-groomed, alert and oriented. The Veteran demonstrated normal speech and unremarkable thought content. The Veteran’s mood was found to be moderately dysphoric with generally somewhat blunted affect “as though fatigued and/or sedated.” The examiner found no observable impairment to attention, concentration or memory. The Veteran denied hallucinations, suicidal and homicidal ideation. The examiner found no symptoms for the Veteran, noting that after review of available records, clinical interview of the Veteran, and psychological testing, found that “there is no reliable indication that the symptoms of the mental disorder the [Veteran] is currently experiences cause clinically significant social and occupational impairment.” The examiner found the Veteran’s symptoms resulted in a mental condition that has been formally diagnosed but with no indication that the symptoms caused clinically significant impairment to current occupational and social functioning. In a June 2016 mental health visit, the Veteran reported remaining significantly depressed but more hopeful that upcoming bilateral replacement surgery on his knees can get him walking again. The Veteran stated that he also had significant levels of anxiety associated with irritability; the Veteran reports that he avoids getting out much due to getting easily irritated but does regularly visit a friend across the street. The Veteran was observed to be casually and appropriately dressed, alert and oriented. The Veteran demonstrated normal speech and thought process. The Veteran’s mood was found to be dysphoric with limited range of affect congruent to mood. The Veteran demonstrated intact judgement, attention, concentration and memory. The Veteran denied hallucinations, suicidal and homicidal ideation. The Veteran was afforded a November 2016 VA examination. The Veteran reported married for over 40 years and reported a good relationship with his wife. The Veteran stated that he doesn’t talk with his three adult children as they live in different states. The Veteran added that “I stay in bed way too much and my wife treats me like a baby.” The Veteran reported that he has not worked or attended school since his last examination in May 2016. The Veteran stated that “I’ve never felt like giving up in my whole life…but now I can’t kick it. I feel like there is nothing there. I love my family but now I just feel like could be there by myself or not there. Sometimes I fee like what’s the point. I feel like I am useless. When I am awake, I am in pain, and I can’t get comfortable sleeping or awake. There is nothing to do…I don’t know how to fix the way I feel, and I don’t like the way I feel.” The Veteran endorsed severe symptoms of depression related to his chronic medical problems and pain that reportedly limit his ability to participate in and enjoy activities. The examiner found the Veteran with symptoms of depressed mood and chronic sleep impairment. The Veteran was observed to be casually dressed in good grooming and hygiene. The Veteran’s mood was found to be depressed with congruent affect. The Veteran demonstrated normal speech with no signs of psychosis or unusual behavior. The examiner found the Veteran’s symptoms resulted in occupational and social impairment due to mild or transient symptoms controlled by medication or which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. In an April 2018 mental health crisis telephone call, the Veteran reported frustration because he was unable to help around the house and found himself crying a lot; the Veteran noted that a lot of things had fallen upon his wife and it pained him to “see her outside mowing the lawn.” The Veteran stated that “I am always in a crisis” but denied wanting to hurt himself or others and the treating provider found the Veteran to be a low to moderate suicidal risk. In a May 2018 telephone call to the suicide hotline, the Veteran reported his reasons for calling to involve suicidal thoughts, mental health, physical illness, and chronic pain. The treating provider noted suicidal ideation without intent. The Veteran stated that he was seeking emotional support and an opportunity to talk about his concerns; the Veteran noted that he was having difficulty getting a mental health appointment scheduled. The treating provider noted the Veteran “alluded to [suicidal ideation]” but did not express it fully due to fears of being “removed from [his] home.” In a follow up to the call, the Veteran did not indicate any suicidal or homicidal ideation. In a later May 2018 mental health visit, the Veteran reported the quality of life “has gone downhill”; the Veteran stated that he felt like a burden to his wife as “she can’t keep doing this” and expressed some distress about increased costs for his life insurance because “I can’t leave my wife like this [without] the policy.” When asked about thoughts of suicide, the Veteran responded, “I don’t plan on being here next year…doesn’t have a reason to be here” but also followed up that “I’m not going to do anything today or this coming weekend.” The Veteran was observed to be distractible with clear speech. The Veteran’s mood was found to be badly depressed. The Veteran demonstrated adequate judgement with poor and limited insight. The treating provider found suicidal ideation, but the Veteran denied homicidal ideation. In an addendum note followup with the Veteran’s reported suicidal ideation, the Veteran “firmly denied intent or plan of self-harm or violence to others”; the Veteran noted concern with being put into a hospital or getting “locked up.” In a June 2018 mental health note, the Veteran reported a marriage to his wife from 1973 with three adult children whom which he reports a good relationship. The Veteran reported depression for 12 years that was progressively worsening. The Veteran stated that he was sad and anxious each day with issues sleeping, low energy, and issues with concentration; the Veteran also noted having thoughts of regret along with becoming very irritable. The Veteran reported having thoughts of death but firmly denied having a plan or intent for violence to himself or others. The treating provider noted the Veteran’s protective factors included future orientation, religious beliefs against suicide and a responsibility to the Veteran’s family. The Veteran was observed to be normally groomed and demonstrated normal speech and cognition. The Veteran was oriented with a sad an anxious mood. The treating provider found the Veteran to be at low risk to others or himself. In a later mental health note in June 2018, the Veteran reported being sad and irritable each day with symptoms of anxiety, sensitivity to stress, low energy and concentration issues. The Veteran stated having thoughts that “I’m no good” and had difficulty valuing himself and his contributions to his marriage. In an addendum note, the treating provider found the Veteran’s depression had significantly increased with more irritation, poor motivation and concentration. In an addendum followup, the Veteran reported feeling very depressed over the past week; the Veteran stated that he felt better when his wife was with him but continued to be depressed. In July 2018 the Veteran reported chronic pain and isolative behavior where he did not want to be around people. The Veteran reported his faith was important, but it was challenged by his current health issues. The treating provider found the Veteran to be a low risk of harm to himself or to others. At the Veteran’s July 2018 hearing the Veteran stated that he and his wife stay by themselves a lot; the Veteran reported being depressed a lot and that it had worsened where he stays in bed. The Veteran describing feeling like a “big kid…just a burden to everybody” and ashamed to say that he cried a lot. The Veteran noted that “I wasn’t going to tell you this, but I said something to my wife the other day. I yelled at her … I say stuff I shouldn’t say sometimes… I want to just be left alone…just want peace and sometimes you just don’t get it.” The Veteran’s representative referred to an updated medical record from June 2008 to show symptoms of feeling down and depressed; sleep issues; poor appetite; “feeling like a failure”; trouble concentrating; nervousness; and suicidal ideation. The Veteran testified that he had such feelings every day. The Board notes that the updated medical record submitted at the hearing shows a June 2018 mental health provider visit; review of the record does not show a June 2008 record nor has the Veteran submitted this record of this visit to be associated with the record. The Veteran’s wife testified that the Veteran would get very depressed to the point where he just wants to lay down and “not deal with anything.” The Veteran’s wife stated they had been married fro 45 years and has observed the Veteran’s mental health gradually worsen. The Veteran stated that he was tired of hurting and noted that “I’m not like my granddaddy was where he was a man’s man. I used to be and now I’m nothing.” In an August 2018 mental health visit, the Veteran reported his low function was the reason he was depressed. The Veteran stated that he feels sad each day and was not hopeful for the future. The Veteran stated that he had poor energy and concentration. The Veteran stated that he has had thoughts that “death would be a relief” but also firmly denied any intent of violence direct to himself or to others. The treating provider found the Veteran to be at a low risk of harm to himself or others. The Veteran was afforded an August 2018 VA examination. The Veteran reported no changes in his marital status since the November 2016 VA examination, where he reported a marriage over 40 years with a good relationship and three adult children whom which he does not have much contact with. The Veteran stated having minimal social relationships and spends about 18 hours in bed. The examiner found the Veteran with symptoms of depressed mood; anxiety and suspiciousness; panic attacks more than once a week; chronic sleep impairment; mild memory loss; impairment of short- and long-term memory; flattened affect; disturbance of motivation and mood; difficulty in establishing and maintaining relationships; difficulty adapting to stressful circumstances; suicidal ideation; and neglect of personal appearance and hygiene. The Veteran was observed to be well groomed and casually dressed. The Veteran was alert and cooperative. The examiner also noted the Veteran with symptoms of crying spells, decreased appetite and problems with concentration. In a March 2019 mental health visit, the Veteran reported ongoing depression and pain which caused him to be not active but also “learned to deal with it.” The Veteran was observed to be polite and demonstrated normal speech, intact judgement and thought, and fair insight. The Veteran’s mood was found to be depressed. The Veteran denied hallucination, suicidal and homicidal ideation. In May 2019 the Veteran reported having “good and bad days…today is OK day.” The Veteran reported that he was unexpectedly moving but did not provide a reason. The Veteran was observed to demonstrate normal speech, fair insight and judgement within normal limits. The Veteran’s mood was found to be frustrated and depressed. The Veteran denied hallucinations, suicidal and homicidal ideation; the Veteran noted that “I wouldn’t leave my wife like that, I don’t want to go out like that.” In a later May 2019 mental health telephone call, the Veteran expressed stress from an upcoming move; the Veteran continued to feel sad and irritable but noted improvement after talking. The Veteran noted that related well with his wife and denied any plan or intent to harm himself or others. In a June 2019 mental health initial consultation, the Veteran reported a chief complaint of depression for the past 10 years manifesting in sleep interruptions; anxiety; irritability; and aches and pains. The Veteran was observed to be oriented, well dressed, and groomed. The Veteran’s mood and affect were found to be slightly anxious. The Veteran denied delusions but reported “seeing a person flashing in front of him more on the right side…figure of an unknown person flashing in front of him in cycles”; the Veteran stated that he has not told his wife about this over fears of being called “crazy” by his wife. The Veteran demonstrated good insight and judgement and denied suicidal and homicidal ideation. The treating provider noted that the reported visual hallucination from the Veteran could be due to severe anxiety and noted further observation was needed. In November 2019 the Veteran reported feeling the same. The Veteran’s wife reported the Veteran stays in bed and doesn’t like to anything. The Veteran stated that he felt nervous when people come visit; instead he likes to stay in bed, feels isolated, depressed and does not want to think about stuff. The Veteran denied thoughts of self-harm. The Veteran was observed to be appropriately groomed and dressed. The Veteran was oriented with clean normal speech and thought process. The Veteran stated that his mood was nervous initially with a normal range of affect. The Veteran demonstrated average intelligence, fair insight and fair judgement. The Veteran denied hallucinations, suicidal and homicidal ideation. In an April 2020 mental health note telephone conversation, the Veteran reported his “ups and downs”; depressed and anxious symptoms; sleeping a lot and staying in bed; and lately feeling depressed. The Veteran was observed to be oriented with normal speech and thought process. The Veteran’s mood was found to be okay with normal range of affect consistent with content. The Veteran demonstrated average intelligence, fair insight and good judgement. The Veteran denied hallucinations, suicidal and homicidal ideation. Recurrent depressive disorder with unspecified anxiety disorder from October 7, 2010 to November 14, 2016 After review of the evidence, the Board finds the evidence of record does not support a finding of an evaluation in excess of 10 percent for the Veteran’s recurrent depressive disorder with unspecified anxiety disorder from October 7, 2010 to November 14, 2016. As noted above, to receive a disability rating for 30 percent, the evidence of record would need to show the psychiatric disorder results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss. Review of the record to include VA examinations in May 2012 and May 2016 does not show that during this period the Veteran’s service-connected recurrent depressive disorder with unspecified anxiety disorder resulted in occupational or social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, indicative of a higher rating. While the Veteran asserted that his recurrent depressive disorder with unspecified anxiety disorder resulted in symptoms of depressed mood, anxiety, irritation, and chronic sleep impairment, and these symptoms are example symptoms under the General Formula for the 30 percent disability rating, the evidence did not indicate that these symptoms resulted in the required level of occupational and social impairment. In this regard, the Board finds highly probative the May 2012 and May 2016 VA examiner after review of the evidence and examination of the Veteran found the Veteran’s symptoms were mild or did not result in occupational or social impairment. The Board notes that in October 2013 the Veteran reported memory problems and other medical treatment records show the Veteran reporting spending most of his time in bed and not wanting to do much or socialize with others outside of the family. However the record also shows the Veteran as wheelchair bound or otherwise limited in mobility due to disabilities of his knees, hips and ankles; the Veteran at his May 2012 VA examination reported getting along with people outside of the family and in April 2015 reported that he leaves the house once a week to go to church. The VA examiners in May 2012 and May 2016 did not find the Veteran with any memory problems or symptoms that caused social impairment show an evaluation in excess of 10 percent. The Veteran at the July 2018 hearing referred to a “June 2008” medical record to be updated with the record to show findings of more severe mental symptoms; however, review of the record shows the medical record associated at the time of the hearing date in June 2018 or a June 2008 record submitted by the Veteran to be associated with the claims record. As such, the Board finds the evidence fails to establish a disability evaluation in excess of 10 percent for the Veteran’s recurrent depressive disorder with unspecified anxiety disorder from October 7, 2010 to November 14, 2016. Recurrent depressive disorder with unspecified anxiety disorder from November 14, 2016 to August 20, 2018 After review of the evidence of record, the Board finds the evidence of record does not support a finding that the Veteran has had symptoms severe enough to warrant an evaluation in excess of 30 percent for the Veteran’s recurrent depressive disorder with unspecified anxiety disorder from November 14, 2016 to August 20, 2018. As noted above, a 50 percent rating is assigned 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 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. Review of the of record during this period to include the November 2016 VA examination show findings the Veteran’s symptoms at most resulted 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, which is the criteria for 30 percent. The Veteran’s symptoms of depressed mood, anxiety, and chronic sleep are contemplated under the rating criteria as emblematic of mental disorders which causes occasional occupation and social impairment, thus warranting a 30 percent rating. DC 9411. The Board notes that the November 2016 VA examiner found the Veteran’s symptoms resulted in occupational and social impairment due to mild or transient symptoms decreasing work efficiency and ability to perform occupational tasks only during periods of significant stress, which represents a 10 percent evaluation. The Veteran reported to be continued to be married to his wife of over 40 years. Although the Veteran reported that he has not worked for years, the Veteran stated that he left his job to take care of his wife when she fell ill and stated that he could not work due to physical pain. The Board notes that in May 2018 and June 2018 the Veteran made reports alluding to suicidal ideation or thoughts of death; however, followup reports or calls with the Veteran show that he later firmly denied any plan or intent, citing religious belief or responsibility to his wife and family. The Board notes that throughout the period on appeal, the Veteran was oriented. His mood was noted to be labile through a whole range of emotions but otherwise within normal limits, and his affect was appropriate. His judgment and insight were fair, and his impulse control was adequate. The Veteran was noted to report symptoms of irritability or in July 2018 where the Veteran testified that he yelled at his wife the other day; however but the treating providers including the November 2016 VA examiner did not find this to rise to the level of impaired impulse control. The evidence of record does not show that the Veteran’s recurrent depressive disorder with unspecified anxiety disorder has been characterized by symptoms that more closely approximate occupational and social impairment with reduced reliability and productivity, which would warrant a higher 50 percent rating. Id. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, based on the evidence, the Board finds the severity, frequency, and duration of the Veteran’s recurrent depressive disorder with unspecified anxiety disorder symptoms and the impact on his functioning more closely approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. As such, the evidence of record does not show the Veteran’s recurrent depressive disorder with unspecified anxiety disorder resulted in a picture of occupational and social impairment in most areas warranting a 50 percent evaluation or higher for the period from November 14, 2016 to August 18, 2018. Recurrent depressive disorder with unspecified anxiety disorder since August 18, 2018 The Board finds review of the evidence since August 18, 2018 does not show the Veteran manifests or nearly manifest the behavioral elements of 100 percent disability. There is no documented instance of grossly inappropriate behavior. There is no evidence of intermittent ability to perform activities of daily living to include maintaining minimal personal hygiene. There is no consistent documentation during this period to show the Veteran being an imminent danger to himself or others, let alone persistence of such danger. The Board notes at the August 2018 VA examination, the VA examiner found the Veteran with symptoms of neglecting personal hygiene and grooming but later observed the Veteran to be well-groomed with adequate hygiene. The Veteran in later mental health visits after the August 2018 VA examination show the Veteran was observed to be well groomed with adequate hygiene. There is no clinical evidence of actual disorientation to time and place. Although the Veteran at the August 2018 examination was found with impairment of short and long term memory, the examiner but did not find the reported symptoms of memory loss to rise to the level of forgetting the names of close relatives, occupation or of his own name. The Board notes in June 2019 the Veteran reported a visual hallucination where he would see an unknown figure flash before his eyes; however, following mental health visits in August 2019 and in April 2020 show the Veteran denied having any hallucinations. The Board has considered the Veteran’s statements regarding the severity of his mental disorder during the period on appeal. However, as lay persons, the Veteran does not have the training or expertise to render a competent opinion which is more probative than the evidence of record as this is a medical determination that is complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994)). Thus, the lay statements and opinions are outweighed by the evidence of record. See id. ; see also King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court’s conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert’s opinion more probative on the issue of medical causation). As such, based on the totality of the disability picture, the Board finds that the preponderance of the evidence is against finding that the Veteran’s recurrent depressive disorder with unspecified anxiety disorder is manifested by an evaluation in excess of 10 percent for the period from October 7, 2010 to November 14, 2016 ; against a finding for an evaluation in excess of 30 percent from November 14, 2016 to August 20, 2018; and against a finding that the Veteran’s recurrent depressive disorder with unspecified anxiety disorder symptoms is manifested by an evaluation in excess of 70 percent since August 20, 2018. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND The Board finds remand is warranted for additional development. Right and Left knee traumatic arthritis, status-post total knee replacement (excluding period of temporary total rating from September 12, 2016 to November 1, 2017) In the November 2018 Board decision, the Board found that although an April 2017 Supplemental Statement of the Case (SSOC) addressed the Veteran’s claims for an increased evaluation for his right and left knees, the Agency of Original Jurisdiction (AOJ) did not readjudicate the matters in the first instance and never issued a Statement of the Case (SOC) regarding the issue for an increased rating for the Veteran’s right and left knees. Godfrey v. Brown, 7 Vet. App. 398 (1995); Manlincon v. West, 12 Vet. App. 238 (1999). As such, the Board remanded to have the AOJ issue an SOC. However, in September 2020, the AOJ issued an SSOC which expressly stated the SSOC was “not a decision on any new issues, but it is intended to inform you of any material changes in, or additions to, the information contained in the SOC we previously sent you.” The Board finds this incorrect as there has been no SOC issued regarding the issues for an increased evaluation for the Veteran’s knee to allow the Veteran to submit a substantive appeal in order to perfect an appeal of this issue. See e.g., Manlincon v. West, 12 Vet. App. 238 (1999). Under these circumstances, the Board finds that the September 2020 SSOC did not substantially comply with the November 2018 Board remand directives and another remand is required. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that where remand instructions are not followed, the Board errs as a matter of law when it fails to ensure compliance). As such, the Board finds that remand for compliance with the November 2018 Board remand instructions is warranted. Obstructive sleep apnea secondary to recurrent depressive disorder with unspecified anxiety disorder The Veteran has contended that his sleep apnea is secondary to his recurrent depressive disorder with unspecified anxiety disorder. In a June 2013 the Veteran claimed sleep apnea as “secondary to depression” and at a December 2019 VA examination reported that he felt his sleep apnea was due to depression which contributed to weight gain. At the Veteran’s July 2018 hearing the Veteran testified that his increase in weight and mental health symptoms is what brought his sleep apnea on. The Board notes that VA examiners in March 2014 and December 2019 opined that the Veteran’s sleep apnea was not caused by his service-connected recurrent depressive disorder with unspecified anxiety disorder and that obesity was the likely cause of the Veteran’s sleep apnea. The Board notes that obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. VAOPGCPREC 1-2017 (Jan 6, 2017). The VA General Counsel opinion states that obesity is not a disease for service connection purposes. VAOPGCPREC 1-2017 at 1. Nonetheless, obesity may be an intermittent step between a service-connected disability and a current disability that may be service connected on a secondary basis. Id. at 2. To grant service connection, the adjudicators would have to resolve the following issues: (1) whether a service-connected disability caused a veteran to become obese; (2) if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and (3) whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. Id. at 9-10. Although the March 2014 and December 2019 opinions stated the Veteran’s sleep is due to obesity, the opinions did not address whether a service- connected disability caused a veteran to become obese; if so, whether the obesity as a result of the service-connected disability was a substantial factor in causing the current disability for which a veteran is seeking service connection; and whether the current disability for which a veteran is seeking service connection would not have occurred but for the obesity caused by the service-connected disability. As such, a VA medical opinion to answer these questions is warranted. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file all updated and outstanding treatment records. 2. Formally adjudicate in a Statement of the Case regarding the Veteran’s appealed issues of an increased evaluation in excess of 30 percent for the right and left knee traumatic arthritis, status-post total knee replacement (excluding period of temporary total rating from September 12, 2016 to November 1, 2017). The Veteran is advised that the Board will exercise appellate jurisdiction over this claim only if a timely appeal is perfected. 3. Schedule the Veteran for a VA examination to ascertain the nature and etiology of his claimed sleep apnea. The electronic claims folder must be provided to and reviewed by the examiner in conjunction with the examination. All indicated tests and studies should be performed and all findings should be set forth in detail. Upon examination of the record and the Veteran, the examiner should address the following: (a.) Is it at least as likely as not that (i.e., a probability of 50 percent or greater) the Veteran’s sleep apnea is due to or caused by the Veteran’s service-connected recurrent depressive disorder with unspecified anxiety disorder? “Aggravation” is defined as any worsening beyond the natural progression of the disability. (b.) If the clinician finds that the sleep apnea was aggravated by the service-connected recurrent depressive disorder with unspecified anxiety disorder, then the examiner should quantify the degree of aggravation. The examiner should also address the following: (c.) Is it at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran’s service-connected recurrent depressive disorder with unspecified anxiety disorder caused him to become obese? (d.) Is it at least as likely as not (50% or better probability) that the obesity was a substantial factor in causing the sleep apnea? (e.) Is it at least as likely as not (50% or better probability) that the Veteran would not have sleep apnea if he were not obese? (f.) The opinions should include a discussion of any pertinent studies or medical literature, as well as pertinent evidence on file. The examiner is also advised that the Veteran is competent to report in-service events and treatment, and his symptoms and history, and such reports and assertions must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. (g.) The examiner should provide a complete rationale for any opinions provided, and if the examiner is unable to provide any opinion request, then the examiner should state so and why. (h.) If the VA examiner is unable to provide an opinion without resort to speculation, he or she should explain whether the inability is due to the limits of the examiner’s medical knowledge, medical knowledge in general or there is evidence that, if obtained, would permit the opinion to be provided. A clearly stated rationale for any opinion offered should be provided. 4. After completion of the above and any additional development deemed necessary, the issues on appeal should be reviewed with consideration of all applicable laws and regulations. If any benefit sought remains denied, the Veteran should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Yang, Attorney-Advisor 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.