Citation Nr: 21068787 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 16-57 503 DATE: November 12, 2021 ORDER The claim of entitlement to an initial increased rating higher than 50 percent for service-connected depressive disorder is denied. REMANDED The claim of entitlement to an initial compensable rating for service-connected cerebellar vermian atrophy is remanded. FINDING OF FACT During the period on appeal, the Veteran's depressive disorder manifested with, at worst, occupational and social impairment with reduced reliability and productivity, but did not reach the level of causing occupational and social impairment in most areas of life. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service in the United States Navy from March 1982 to April 1987, February 1999 to July 1999, and October 1999 to July 2011. These matters come before the Board of Veterans' Appeals (Board) from October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded these matters to the RO for further development. The Board concludes that there has been substantial compliance with its prior directives only as to the rating of the Veteran's acquired psychiatric condition (depressive disorder). Although regrettable, additional remand is required for substantial compliance with the previous remand instructions as to the claim of entitlement to a compensable rating for cerebellar vermian atrophy. Specifically, VA examinations relating to the Veteran's condition were completed without consideration of relevant private treatment records. See Stegall v. West, 11 Vet. App. 268, 270-71 (1998). 1. The claim of entitlement to an initial increased rating higher than 50 percent for service-connected depressive disorder. The Board notes at the outset of this discussion that the Veteran has expressed satisfaction with a 50 percent rating for his service-connected depressive disorder. Specifically, in a May 2019 written argument, the Veteran's representative explained that the Veteran, "is satisfied with the 50% rating for his depression as it appears to be consistent with his ongoing symptomatology." The Veteran's representative further stated that so long as "the 50% rating for depression/anxiety (aside from the cerebellar atrophy) remains in place, the Veteran will not challenge its adequacy." See May 2019 Additional Argument; see also July 2017 Form 9. In its February 2019 remand, the Board separated the issues of increased ratings for depression and cerebellar vermian atrophy, concurring with the Veteran that these two issues should not be combined. Despite the Board's findings, the Agency of Original Jurisdiction (AOJ) appears to have continued to conflate the rating of the two conditions. See June 2021 Supplemental Statement of the Case (SSOC) and July 2021 rating codesheet (rating the conditions under hyphenated Diagnostic Codes 8014-9434, as superior cerebellar vermian atrophy with major depressive disorder). The Board will address the rating of vermian atrophy below; however, as the Veteran has not explicitly withdrawn his claim for increased rating of his depressive disorder, and as the evidence concerning the severity of the Veteran's psychiatric condition is clear, the Board will adjudicate the matter presently. Generally, disability evaluations are determined by the application of the 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for a greater initial rating after an award of service connection, all evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can 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 (1999). Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 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. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for such a rating. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. In rating psychiatric disabilities, 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 rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The preponderance of the probative evidence, to include a March 2021 VA examination and the Veteran's lay statements, shows that the Veteran's depressive disorder was manifested by symptoms associated with a 50 percent rating (disturbances in motivation and mood, to include anxiety, depression, and sadness, and impairment of memory), and symptoms associated with a 70 percent rating (difficulty adapting to stressful circumstances). He also had symptoms that are not listed with a specific rating, such as reduced energy, concentration, and appetite. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. The lay and medical evidence of record does not show evidence of suicidal ideation, perceptual disturbances, or inpatient psychiatric hospitalization. Significantly, on most recent medical examination, the March 2021 VA examiner observed the Veteran to be adequately groomed, with normal speech, and he was pleasant and cooperative during his examination. He was alert and oriented during the evaluation, with thoughts logical and goal directed. His working memory was described as somewhat impaired and his abstract reasoning intact. While the evidence of record does show the Veteran to have difficulty in stressful situations, the level of impairment caused by this difficulty is not so significant as to warrant a 70 percent rating. The Board finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The March 2021 VA examiner diagnosed the Veteran with persistent depressive disorder with anxious distress and opined that the Veteran's level of occupational and social impairment due to his mental conditions resulted in occupational and social impairment with reduced reliability and productivity. The Board finds this examination probative, as the examiner conducted a thorough review of the Veteran's medical and psychiatric history, including consideration of past medical examinations. The examiner extensively considered the Veteran's lay statements and reports of symptomatology in providing a reasoned evaluation of the Veteran's mental functioning. Additionally, the Board considers this examination reflective of the extensive lay and medical evidence of record in this matter. For example, during his September 2013 VA examination, the Veteran described his successful and ongoing 31-year marriage as "same as always" and "even keel for the most part." He reported at that time remaining in contact with his grown children, and reported that he was attending courses for computer systems through vocational rehabilitation. On examination in March 2021, the examiner noted that the Veteran continues to manage all of his aily activities independently, and received a bachelor's degree in computer science in 2014. Cumulatively, the Board finds the Veteran's functioning during the appeal period defined, at most, by occupational and social impairment with reduced reliability and productivity. In sum, while the Veteran did experience symptoms contemplated by a 70 percent rating during the period on appeal, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating, at most. As such, entitlement to an initial rating in excess of 50 percent is denied. REASONS FOR REMAND 1. The claim of entitlement to an initial compensable rating for service-connected cerebellar vermian atrophy is remanded. The Veteran contends he is intitled to a compensable initial rating for his service-connected cerebellar vermian atrophy. In its February 2019 remand, the Board directed the RO to obtain any updated VA treatment or adequately identified private treatment records and social security records and then schedule the Veteran for a VA examination with a VA neurologist physician to evaluate the nature and severity of the Veteran's service-connected cerebellar vermian atrophy. In March 2019, the RO mailed a development letter to the Veteran, requesting that the Veteran identify all private and VA medical records not previously considered. This letter was returned to VA as undeliverable in March 2019. Regrettably, it appears that the RO proceeded to schedule the Veteran for medical evaluation for his cerebellar vermian atrophy prior to re-mailing the development letter to the Veteran, as the record reflects that another letter was not mailed until April 2021. In May 2021, the Veteran's representative submitted extensive medical treatment records from private provider, Baylor, Scott and White, along with a summary of relevant findings pertaining to symptoms of the Veteran's vermian atrophy condition. See May 2021 Submission of Medical Records in Response to April 16, 2021 Development Letter. Without access to these records, multiple VA examiners evaluated the Veteran for central nervous system and cranial nerve conditions, to include in August 2019 and July 2020. Given that the Veteran is service connected for multiple complex conditions that may cause similar symptoms relating to the Veteran's balance, gait, cognitive and verbal functioning, consideration of the Veteran's medical profile by a qualified clinician is essential in this case. At minimum, remand is needed to obtain an addendum opinion from a qualified clinician to consider the medical evidence in its entirety and to opine as to the severity of the Veteran's cerebellar vermian atrophy, as well as to identify (to the extent medically possible) the symptoms attributable to that condition rather than to another service-connected disability. Although it is the responsibility of the Board to weigh medical evidence, the Board cannot make its own independent medical determinations. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). Lastly, the Board notes again that the AOJ has continued to incorrectly combine the rating of this condition along with the Veteran's acquired depressive disorder. In its February 2019 remand, the Board extensively examined the medical evidence relating to this claim, and specifically determined that the issue of cerebellar vermian atrophy must be considered separately from the Veteran's service-connected depression. Additionally, the AOJ appears to have rated the condition under DC 8014 for meningovascular syphilis, for unclear reasons. On remand, the RO should readjudicate the matter considering all appropriate Diagnostic Codes, to include consideration of rating the condition by analogy as an organic disease of the central nervous system and/or as a disease of the cranial nerves (see e.g., July 2020 VA examination findings of partial paralysis of the glossopharyngeal cranial nerve). The RO should also issue a new rating decision codesheet, which accurately distinguishes the rating codes and percentages assigned for each of the Veteran's service-connected conditions. The matter is REMANDED for the following action: 1. Arrange for a qualified clinician (preferably a specialist in central nervous system and/or cranial nerve conditions), to review the complete medical evidence of record, to include private medical treatment records from Baylor, Scott and White, submitted by the Veteran in May 2021, and all relevant VA examinations and records relevant to the Veteran's condition. After reviewing the complete evidence of record, the clinician shall opine as to the nature and severity of the Veteran's service-connected cerebellar vermian atrophy. The clinician shall identify all symptoms associated with and attributable to the Veteran's service-connected cerebellar vermian atrophy and shall discuss the severity of any identified symptoms. If the clinician determines that additional examination or diagnostic testing is necessary, it should be arranged. If the clinician cannot clearly identify the symptoms attributable to this condition as opposed to another service-connected condition, the clinician shall explain why. If the clinician cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the clinician shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to the particular question presented. 2. Thereafter, readjudicate the claim of entitlement to an initial compensable rating for cerebellar vermian atrophy, considering all appropriate Diagnostic Codes and issue an updated rating decision codesheet. If the claim remains denied, issue an appropriate SSOC and return the matter to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Hart, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.