Citation Nr: 21065856 Decision Date: 10/27/21 Archive Date: 10/27/21 DOCKET NO. 17-09 687 DATE: October 27, 2021 ORDER A rating in excess of 50 percent of depressive disorder is denied. REMANDED Entitlement to a rating in excess of 30 percent for breast cancer is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran's depressive disorder is manifested by symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1988 to April 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2016 and June 2016 by a Department of Veterans Affairs (VA) Regional Office. In April 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In August 2018, the case was remanded for additional development, and, in December 2019, the Board denied the claims on appeal. Thereafter, the Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In March 2021, the Court issued a Memorandum Decision that vacated and remanded the Board's December 2019 decision. The case now returns for further appellate review. The Board notes that, since the issuance of the July 2019 supplemental statement of the case, additional VA-generated evidence, to include an August 2021 VA mental disorders examination and updated VA treatment records, was associated with the file. The Veteran has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. However, as relevant to the Veteran's depressive disorder, the Board finds that, as such newly received evidence was considered in the August 2021 rating decision, there is no prejudice to her in adjudicating such claim at the present time. 38 C.F.R. § 20.1305(c). Further, to the extent that such evidence is relevant to the Veteran's claims for an increased rating for her breast cancer disability and a TDIU, they are being remanded so that the AOJ may consider the newly received evidence in the readjudication of such claims. 1. Entitlement to a rating in excess of 50 percent of depressive disorder. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. For the entire appeal period stemming from the Veteran's March 17, 2016, claim for a TDIU, she is in receipt of a 50 percent rating for her depressive disorder, which is evaluated as 50 percent disabling under the criteria of DC 9434. In this regard, such provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Under such Formula, a 50 percent rating is warranted 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 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is 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. Id. A 100 percent rating is warranted when 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. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas." Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9434. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination." 38 C.F.R. § 4.126(a). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug. 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. Golden v. Shulkin, 29 Vet. App. 221 (2018). After a review of the record, the Board finds that the Veteran is not entitled to a rating in excess of 50 percent for her depressive disorder. In this regard, the Veteran was afforded a VA examination in June 2016. At such time, the examiner found that her depressive disorder resulted in 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, which is consistent with a 10 percent rating under the General Rating Formula. At the time of such examination, the Veteran reported that she resided with her husband, son, daughter, and grandchild, and stayed at home most of the time as a result of feeling self-conscious about the effects of radiation and hot flashes. She also stated that she had no friends and had limited contact with family, but her hobbies included cooking. Her occupational history included working in the catering business through VA vocational rehabilitation from 2010 to 2012, and in August 2015, she opened up a family restaurant and tried to work for a month but stopped due to medical problems. Her symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner found her to be alert and oriented with good hygiene and eye contact. Subsequent treatment records reveal that the Veteran continued to seek treatment for her depressive disorder. Specifically, in June 2017, she reported that she felt overwhelmed by the possibility of having to have a bilateral mastectomy. She also stated that she was still married to her husband of 10 years, but was having second thoughts about the relationship. She could not tell the clinician exactly why or what problems she was having, but stated that she was just not happy and her husband complained about her being so moody. Upon examination, the Veteran had appropriate grooming and hygiene; normal speech; anxious mood and labile affect; logical and goal-directed thought process; no delusions or paranoia; no suicidal or homicidal ideations; no hallucinations, fair judgment; oriented to person, date, and place; and memory grossly intact. Additionally, in March 2018, the Veteran reported feeling more anxious and upset lately due to financial issues and her recurring breast lumps. She also reported poor sleep, worrying, feeling depressed, hopelessness, and anhedonia, but denied suicidal and homicidal ideation, and her psychiatric examination reflected the same results as in June 2017. At the April 2018 Board hearing, the Veteran testified that she could divorce her husband and did not talk or go anywhere. She also stated that she did not have friends and her mood was up and down. She further testified that she was more depressed and stressed due to not knowing if her breast cancer was back or if there could be issues in the future. Pursuant to the August 2018 remand, the Veteran underwent another VA examination in November 2018. At such time, the examiner found that such disability 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 consistent with a 30 percent rating under the General Rating Formula. The Veteran reported that she now resided with her daughter and grandson as she separated from her husband last year. She further indicated that she had no contact with friends, monthly phone contact with her son, and daily contact with her daughter, who both lived in Texas. She also helped with babysitting her grandson and had monthly phone contact with her sister, who also lived in Texas. Additionally, the Veteran reported that she had passive suicidal thoughts with no intent, and had feelings of hopelessness, anger, and disappointment with her VA care and her body. The Veteran's symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting stressful circumstances, including work or a worklike setting. The Veteran's behavioral observations were that she was alert and oriented; good hygiene and eye contact; mood dysphoric; anxious; tearful at times; affect appropriate; denied suicidal and homicidal ideation; and no psychosis or mania. VA treatment records reflect that, in September 2019, the Veteran reported that, while she had suicidal thoughts in the past, she denied a history of suicidal gestures or current suicidal ideation. A few days later, she indicated that, while she had passive suicidal ideation a few weeks previously, she had not subsequently experienced such symptomatology. It was also noted that the Veteran was still seeking ongoing care for her depressive disorder. Specifically, she reported that she needed help with depression and anxiety. However, the clinician found that she posed no threat to herself or others. The Veteran also stated that she was always kind and did not like to give anyone a hard time. In November 2019, the Veteran reported that she had separated from her husband, but had good relationships with all of her children and ex-spouses. December 2019, March 2020, July 2020, September 2020, December 2020, and June 2021 VA treatment records reflect relevant complaints of anxiety and depression, she denied experiencing any suicidal or homicidal ideation and, in June 2021, indicated that she had been doing well lately. In August 2021, the Veteran underwent another VA examination and such examiner noted diagnoses of major depressive disorder, recurrent, moderate, and posttraumatic stress disorder (PTSD) as a result of witnessing her son's murder in 2005. The examiner noted that it was not possible to differentiate what symptoms were attributable to each diagnosis. Specifically, he noted that both create intrusive thoughts, depressed mood, anxiety, anhedonia, sleep disturbances, and social withdrawal, but nightmares would be specific to PTSD. The examiner found that the Veteran's psychiatric disability 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 consistent with a 30 percent rating under the General Rating Formula. The Veteran reported that she has been married to her current husband for 12 years and had 4 children. As noted previously, one of her sons was murdered in front of her home in 2005, but she had contact with her remaining children. She also indicated that she had not worked since 2015 due to medical issues. Her symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work like setting. The Veteran's behavioral observations were that she had adequate grooming and hygiene, although was a bit unkempt looking; normal speech; mood was sad with a tearful affect; thought process was logical, linear and goal directed; denied suicidal and homicidal ideation; no obvious impairments in memory, attention, or concentration; fair insight and judgment; and was alert and oriented times four. The examiner also noted that the Veteran experienced social isolation, but indicated that she was not an elevated acute risk for suicide. Based on review of the forgoing evidence, the Board finds that, for the entire appeal period, the Veteran's depressive disorder is manifested by symptomatology, to include anxiety; disturbance of motivation and mood; avoidance behavior; sleep difficulty; depressed mood; and difficulty in adapting stressful circumstances, including work or a worklike setting; which resulted in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In this regard, there is no evidence that the Veteran's depressive disorder results in symptomatology of intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting her ability to function independently, appropriately, and effectively; obsessional rituals which interfere with routine activities; spatial disorientation; impaired impulse control (such as unprovoked irritability with periods of violence); neglect of personal appearance and hygiene; inability to establish and maintain effective relationships; gross impairment in thought processes or communication; persistent danger of hurting herself or others; 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. As directed by the Court's March 2021 Memorandum Decision, the Board has considered that the Veteran's report that she had passive suicidal thoughts at the November 2018 VA examination as well as in September 2019. However, at both times, she stated that she had no intent and denied current suicidal ideation. Furthermore, the November 2018 VA examiner considered such report, but found that the Veteran's depressive disorder 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 consistent with a 30 percent rating under the General Rating Formula. Moreover, the remainder of the evidence of record, to include VA treatment records and the August 2021 VA examination are negative for any reports or findings of suicidal ideation. In this regard, as noted previously, while the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. See Bankhead, supra. Thus, in the instant case, the Board finds that, based on the nature, frequency, severity, and duration of the Veteran's reported passive suicidal ideation as previously detailed, such does not result in occupational and social impairment in most areas. Additionally, while the Veteran has reported marital problems, which resulted in the separation from her husband, and she has no friends, she has been able to maintain relationships with various family members, including her former spouses, sister, children, and grandson. She also resided with one of her children. Furthermore, while the Veteran has reported that she has not worked during the appeal period, the aforementioned VA examiners, who are psychologists with the appropriate expertise to evaluate the severity of psychiatric disorders, found that the Veteran's psychiatric symptomatology resulted in, at most, 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 consistent with a 30 percent rating under the General Rating Formula. Therefore, the Board finds that the difficulties the Veteran experiences as a result of her depressive disorder in regard to occupational and social impairment are fully contemplated by a 50 percent rating. Accordingly, a rating in excess of 50 percent for the Veteran's depressive disorder is not warranted. The Board has contemplated whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected depressive disorder; however, the Board finds that her symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claims adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board has also considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claim for an increased rating for her depressive disorder. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and her claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a rating in excess of 30 percent for breast cancer. The Board finds that a remand is necessary to obtain outstanding private treatment records. In this regard, the Veteran's VA treatment records associated with the file in August 2021 indicate she received treatment at the Karmanos Cancer Institute in Detroit, including ultrasounds and multiple magnetic resonance imaging (MRI), regarding an enhancing left breast lesion. Thus, the Board finds that a remand is warranted to obtain all outstanding records from such medical facility. 3. Entitlement to a TDIU. The Veteran's claim for a TDIU is inextricably intertwined with the remanded claim for an increased rating for breast cancer. Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim). As such, consideration of the Veteran's TDIU claim must be deferred pending the outcome of the remanded claim. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (where a claim is inextricably intertwined with another claim, the claims must be adjudicated together in order to enter a final decision on the matter). The matters are REMANDED for the following action: The Veteran should be requested to submit or authorize VA to obtain her records from Karmanos Cancer Institute in Detroit, Michigan, including the ultrasounds and MRIs referable to her breast(s). Following the receipt of any necessary authorization from the Veteran, attempt to obtain such outstanding records by making at least two (2) attempts to obtain them. If the records are unavailable, inform the Veteran and afford her an opportunity to submit any copies in her possession. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Clark 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.