Citation Nr: 21069121 Decision Date: 11/17/21 Archive Date: 11/17/21 DOCKET NO. 14-09 012 DATE: November 17, 2021 ORDER Entitlement to an increased rating of 70 percent from December 23, 2009 to May 9, 2010 for depressive disorder NOS is granted. Entitlement to an increased rating in excess of 30 percent from May 10, 2010 for depressive disorder NOS is denied. REMANDED Entitlement to service connection for cataracts/loss of vision (hereinafter eye disability), to include as secondary to service-connected diabetes mellitus II is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. From December 23, 2009 to May 9, 2010, the Veteran's depressive disorder NOS (hereinafter psychiatric disability) manifested in suicidal ideations resulting in occupational and social impairment causing deficiencies in most areas of life. 2. As of May 10, 2010, the Veteran was considered a low risk for suicidal intent, and his psychiatric disability symptoms manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 70 percent, but no higher, for a psychiatric disability have been met from December 23, 2009 to May 9, 2010. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to an increased rating in excess of 30 percent for a psychiatric disability as of May 10, 2010 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1968. These matters are on appeal to the Board of Veterans' Appeals (Board) from September 2010 and October 2013 rating decisions. Following a June 2019 decision remanding the claims, the Board denied the claims in August 2020. The Veteran appealed the issues of service connection for an eye disability, an increased rating for his psychiatric disability, and entitlement to a TDIU to the Court of Appeals for Veterans Claims (CAVC). Pursuant to a Joint Motion for Partial Remand (JMPR), the CAVC vacated the August 2020 decision in July 2021 and remanded the claims back to the Board. The claims of special monthly compensation based on aid and attendance and an increased rating for bilateral hearing loss were not appealed to CAVC; thus, the claims are no longer on appeal to the Board. 1. Psychiatric disability The diagnostic code for unspecified depressive disorder is DC 9435. 38 C.F.R. § 4.130 provides that for all mental disorders listed under § 4.130, the General Rating Formula for Mental Disorders governs. Under the General Rating Formula for Mental Disorders, a 30 percent disability rating is assigned when there is evidence of 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Under the General Formula for Mental Disorders, 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 Veteran is appealing the initial rating of the assignment of a 30 percent disability rating back to December 23, 2009, the effective date of service connection. Thus, the Board will consider the evidence from December 23, 2009, to include whether staged ratings are warranted. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (indicating in this circumstance VA adjudicators must consider whether to "stage" the ratings, meaning assign different ratings since the effective date of the award if there have been occasions when the disabilities have been more severe than at others). A veteran may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. Reviewing the evidence chronologically, a February 2010 Marion VAMC record marks the first indication of mental health treatment within the appeal period. At that time, the Veteran had endorsed recent thoughts of suicide and was referred to a suicide prevention case manager. The Veteran reported thoughts of suicide for years that "come and go." He endorsed recent stressors involving retirement and financial constraints that had overwhelmed him. Protective factors included his wife, children, grandchildren, and brother. He rated his depression at a 5 on a scale of 1 to 10, and anxiety at a 5 to 6 on the same scale. He endorsed difficulty sleeping. In a March 2010 treatment record, the Veteran denied suicidal ideation. In April 2010, he reported that he continued to sleep poorly. On May 10, 2010, he was seen for insomnia, anxiety, and low energy. Poor sleep was his predominant complaint. He underwent assessment for suicide risk and was deemed to be at low risk based on the absence of suicidal ideations and the presence of one or more protective factors. In an August 2010 VA examination, the Veteran reported being married for over 40 years with five children and grandchildren, all of whom he was very close with. He had several friends, typically took his wife out once a week, and they attended church together. He enjoyed riding a 4-wheeler with his brother, going deer hunting, and watching TV or checking emails from friends. Regarding his symptomatology, the Veteran stated he could occasionally be verbally abusive. He reported experiencing significant sleep disturbance. According to the Veteran, he had been much more depressed 6 months prior, when he experienced stressors that caused feelings of hopelessness, helplessness, and worthlessness, though he only had such thoughts infrequently now. He had significant suicidal thoughts approximately 6 months ago but did not have any currently. He again estimated that his depression was at a 5 out of 10. He reported being irritable at times, but he denied hearing voices and was not suspicious. The examiner observed the Veteran to have a friendly and relaxed attitude, a somewhat constricted affect, with no inappropriate behaviors or impaired judgment. He presented mildly depressed and dysphoric. There was no clear history of panic attacks, though the Veteran stated he occasionally felt nervous and shaky. The examiner described the stressors that brought on his severe symptoms 6 months prior and explained that treatment had helped though the Veteran continued to be somewhat depressed. In a December 2011 statement, the Veteran endorsed nightmares that aggravate his depression and anxiety. Throughout 2011 the Veteran presented for treatment at Marion VAMC with symptoms of depression, anxiety, and insomnia, but denied suicidal ideation. In an August 2013 VA examination, the report reflects that the Veteran continued to present with mild symptoms of depressed mood with improvement and stability of symptoms. He still had periodic brief moments of depression but no suicidal thoughts since 2010. He received services on an as-needed basis and was currently considered stable on medication. The examiner specially noted a January 2013 record wherein the Veteran denied depression and reported improved mood on his current medication regimen, though he still endorsed chronic insomnia. The Veteran was able to attend to his activities of daily living and had meaningful relationships with relatively good psychosocial functioning. His current diagnosis reflected ongoing variable symptom presentation of depressed mood with at least partial remission based on review of the most recent medical records in 2013 and current presentation. The Veteran again reported being close to his wife, children, and grandchildren as well as his siblings. He had a couple of friends. He spent his days taking care of bills and working on the yard. He enjoyed deer hunting with his brother and being outdoors when he can. He enjoyed taking his grandchildren on the 4-wheeler. Regarding current symptomatology, the Veteran still had nightmares 2 to 3 times weekly and did not sleep well. He became depressed and irritable at times and would isolate himself. The Veteran had passive suicidal thoughts in 2010 when he was going through a lot of family stressors but had not had any problems since then. According to the Veteran, his depression was not as bad as it used to be. The examiner listed depressed mood, chronic sleep impairment, and mild memory loss as the Veteran's current symptoms. Considering the severity and frequency of his symptoms, the examiner opined that the Veteran's symptoms 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. In his March 2014 VA Form 9, the Veteran stated he suffered with panic attacks, disturbances of mood and motivation, short and long-term memory loss, irritability, and isolation. In an April 2014 mental health follow-up appointment, the Veteran stated he was doing better with irritability. His mood had improved but was not where he felt it should be. He denied suicidal ideation or feelings of hopelessness, helplessness, or worthlessness. In May 2014, he reported that his medications were helping his mood, but he still experienced insomnia. In his most recent December 2019 VA examination, the Veteran reported a stable marriage with his wife of 50 years, and regular contact and good relationships with his children and grandchildren. He has friends and sees two of his siblings monthly and talks with them frequently. The examiner remarked that the Veteran's current psychosocial functioning appears normal and unremarkable, though somewhat isolated outside of family. He had not received formal mental health treatment since his last examination and his depression appeared stabilized on medication. The Veteran reported stable depression but continued sleep disturbance. His listed symptoms were depressed mood and chronic sleep impairment, and the examiner opined that these symptoms result 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. Upon careful review of the evidence, the Board finds that staged ratings are warranted. In February 2010, the Veteran was experiencing significant stressors that resulted in exacerbated psychiatric symptoms, to include suicidal ideation. In Bankhead, the CAVC found that "both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." 29 Vet. App. at 20. In applying the meaning of suicidal ideation to the rating criteria, the CAVC noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogues at the lower evaluation levels and there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of "active" suicidal ideation, "passive" suicidal ideation, suicidal "intent," suicidal "plan," suicidal "prepatory behavior," hospitalization, or past suicide attempts). Id. Thus, the CAVC found "the language of the regulation 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 with deficiencies in most areas." Id. In light of this, the Board finds that the presence of suicidal ideation in February 2010 caused occupational and social impairment with deficiencies in most areas, warranting a 70 percent rating. As the Veteran endorsed thoughts of suicide prior to this initial date of treatment, the Board will assign a 70 percent rating back to the initial effective date of December 23, 2009. As of May 10, 2010, however, the evidence clearly shows an improvement in symptoms that remain consistent throughout the rest of the appeal period. The Veteran denied suicidal ideation at that time and has done so ever since. His reported symptoms during treatment visits, as well as those found in examinations, are primarily depression, anxiety, and sleep impairment, with sleep impairment appearing to be the most troublesome to the Veteran. Throughout the record, the Veteran himself has rated his depression and anxiety as moderate (i.e., a 5 or 6 out of 10 in severity), and the examiners have indicated that his symptoms remain mild, consistent, and stable with medication. While the Veteran has consistently reported significant and frequent chronic sleep impairment throughout the appeal period, this symptom does not appear to cause impairment with reduced reliability and productivity. The evidence shows the Veteran has remained productive with activities of daily living and hobbies and maintains reliable social relationships despite trouble sleeping. The Board acknowledges the unlisted symptoms of irritability, low energy, and periods of isolation; however, these symptoms do not appear to be of such severity or frequency that they cause occupational and social impairment with reduced reliability and productivity. Despite feeling irritable and desiring to be alone at times, the Veteran has maintained good relationships with his wife, children, friends, and brother, and he continues to engage in activities he enjoys. Additionally, the Board acknowledges the Veteran's endorsement of panic attacks and disturbances of mood and motivation. While the Board finds the Veteran both competent and credible in relaying his symptoms, there is no indication that the frequency and severity of these symptoms warrants a higher rating. There is no notation of panic attacks in the treatment records, and the only other indication of the existence of such attacks is in the 2010 examination report that indicates the Veteran feels nervous and shaky at times. Considering the Veteran has rated his anxiety as a 5 or 6 out of 10, the Board does not find from the evidence that his anxiety and panic attacks are of the frequency and severity to cause occupational and social impairment with reduced reliability and productivity. Notably, the 2013 and 2019 examiners found the Veteran's symptoms to result 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, which is associated with a 10 percent rating. This is consistent with the evidence showing mild or transient depression symptoms that become particularly troublesome during periods of significant stress, such as in February 2010. The Veteran's symptoms of depression, anxiety, and chronic sleep impairment, as well as the finding of mild memory loss in the 2013 examination, are all symptoms listed under a 30 percent rating. Considering the severity and frequency of both the listed and unlisted symptoms of record, the Veteran's psychiatric disability, at most, results in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily with routine behavior, self-care, and conversation normal. Thus, the Veteran is not entitled to a disability rating in excess of 30 percent as of May 10, 2010. REASONS FOR REMAND 2. Eye disability In the JMPR, the parties agreed that the June 2019 remand directives were not complied with because the November 2019 VA examiner did not consider whether the Veteran's diagnosed eye disability was aggravated by his service-connected diabetes as directed. 38 U.S.C. §§ 5103A, 7104(d)(1); Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, a new opinion is needed to ascertain whether the eye disability is aggravated by a service-connected disability, to include diabetes. See 38 C.F.R. § 3.310 (a) (Service connection may be established on a secondary basis for a disability which was either: (1) caused by, or (2) aggravated by, a service-connected disease or injury). 3. TDIU In the JMPR, the parties agreed that the issue of entitlement to a TDIU is inextricably intertwined with the issues of an increased rating for the psychiatric disability and service connection for an eye disability. See Roebuck v. Nicholson, 20 Vet. App 307, 313 (2016) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered); see also Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Thus, because entitlement to a TDIU may be contingent on the outcome of the issue of service connection for an eye disability, the Board must remand the TDIU issue as well. The matters are REMANDED for the following action: 1. Obtain a VA opinion, or an examination if deemed necessary, for the Veteran's claimed eye disability. The entire file must be made available to the examiner, and the examiner must consider and specifically address the February 2014 Marion VAMC record that assesses the Veteran's condition as "FC OD sec to NAION in pt w/ DM and HTN." The examiner must opine with a supporting rationale whether the Veteran's eye disability is at least as likely as not proximately due to OR aggravated beyond natural progression by a service-connected disability, to include diabetes mellitus type II. 2. Readjudicate the Veteran's service connection claim for an eye disability as well as entitlement to a TDIU. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Carroll, 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.