Citation Nr: 21075753 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-21 555 DATE: December 21, 2021 ORDER Entitlement to an initial 100 percent rating for major depressive disorder is granted. REMANDED Entitlement to service connection for chronic kidney disease is remanded. Entitlement to service connection for coronary artery disease is remanded. Entitlement to service connection for cerebrovascular accident is remanded. Entitlement to service connection for a migraine headache disability is remanded. Entitlement to service connection for a male reproductive disability, to include sterility, hypogonadism and erectile dysfunction is remanded. Entitlement to service connection for thrombocytopenia is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for systemic lupus erythematosus is remanded. Entitlement to service connection for scleroderma is remanded. FINDING OF FACT The Veteran's major depressive disorder is characterized by auditory, visual, and olfactory hallucinations, delusions, suicidal ideation, depression most of the day every day, frequent panic attacks, neglect of personal hygiene, flattened affect, and mild memory loss. CONCLUSION OF LAW The criteria for a 100 percent initial rating for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1992 to July 1996. This matter came before the Board of Veterans Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veteran's Law Judge during a March 2021 hearing. The transcript of the hearing is of record. Evidence in the record suggests that the Veteran may have multiple male reproductive system conditions; therefore, the Board will broadly construe the issue of service connection for sterility as a claim for service connection for a male reproductive disability, to include sterility, hypogonadism, and erectile dysfunction. Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009). 1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder The Veteran contends that he is entitled to a higher rating for his major depressive disorder, which is currently rated at 50 percent. As will be discussed in detail below, the Board finds that an initial 100 percent rating is warranted. 38 C.F.R. §§ 4.7, 4.130, DC 9434. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Individual disabilities are assigned separate diagnostic codes. See U.S.C. §1155; 38 C.F.R. § 4.1. When there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for the rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability's severity, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Neither the number of symptoms nor the type of symptoms controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative, and the Board must draw fact-based conclusions as to whether those symptoms, and their severity, frequency, and duration, have caused the level of occupational and social impairment associated with a given rating. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The Board notes that the presence of suicidal ideation alone conceivably might cause occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. Bankhead, 29 Vet. App. at 19. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 39 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). For the entire period on appeal, the Veteran has been rated under Diagnostic Code (DC) 9434, which is evaluated under the General Rating Formula for Mental Disorders. Under the DC, the criteria for a 50 percent rating are 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. The criteria for a 70 percent rating are 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. The criteria for a 100 percent rating are 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 of 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. 38 C.F.R. § 4.130, DC 9411. VA treatment records document psychiatric treatment. October 2015 records noted hallucinations of smelling and tasting blood. December 2015 records noted recurrent visual hallucinations of people who had died as well as a "devil guy" who spoke to him and told him that he was dying. October 2016 records noted an admission for a serious suicidal plan in April 2015 as well as ongoing ideation. May 2017 records noted passive suicidal ideation without a plan. December 2020 records noted that the Veteran reported envy of people that were dead and discussed wanting to die as a way to manage his emotional and difficult thoughts. A June 2017 VA examination found symptoms of depression, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood and suicidal ideation. The examiner also noted that the Veteran reported a history of some hallucinations, though it had not happened for a while. An August 2020 VA examination noted that the Veteran had depression most of the day every day and passive thoughts of death. The examiner found symptoms of depression, anxiety, panic attacks more than once a week, chronic sleep impairment, flattened affect, mild memory loss, and disturbances of motivation and mood. The examiner observed that the Veteran was verbal but that his affect was very flat and somewhat blunted. Regarding memory loss, the examiner remarked that it involved forgetting names, directions, and recent events. A March 2021 VA examination found total occupational and social impairment due to the psychiatric disability. The examiner found symptoms of depression, anxiety, suspiciousness, near-continuous panic and depression, chronic sleep impairment, mild memory loss, flattened affect, intermittently illogical speech, impaired abstract thinking, persistent delusions, hallucinations, neglect of personal appearance/hygiene, suicidal ideation, and disorientation to time/place, among others. The examiner noted that the Veteran presented as significantly depressed and psychotic despite taking both antipsychotics and antidepressants, heard voices inside of his head, and was actively delusional. The Veteran reported both thoughts of death as well as specific methods, though he denied intent. At the outset, the Board finds that the VA examinations are adequate for appellate review. There is no evidence that the examiners were not competent or credible, and as the reports are based on the Veteran's statements, in-person examinations and the examiners' observations, the Board finds them entitled to significant probative weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 30205 (2008). At the March 2021 Board hearing, the Veteran reported frequent hallucinations. His wife reported that she had to remind him to take his medication and carrying out basic personal hygiene, noting that he put on dirty clothes if she did not lay out clothes for him. She also stated that if she did not tell him to go get cleaned up, he would just lay there. The Board notes that the Veteran and his wife are competent to report lay-observable symptoms and behaviors and assigns their statements significant probative weight. Moreover, the undersigned has had the opportunity to observe the Veteran and his wife and finds them to be credible. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Upon review of the above, the Board finds that the Veteran's PTSD results is total occupational and social impairment, warranting a 100 percent rating. The March 2021 VA examination found significant depression and psychosis, noting that the Veteran heard voices and was actively delusional. These findings are supported by VA treatment records noting delusions/hallucinations through the period on appeal, the June 2017 VA examination noting a history of hallucinations, and the testimony at the March 2021 hearing regarding frequent visual and auditory hallucinations. The March 2021 examiner also found neglect of personal appearance/hygiene, consistent with the Veteran's wife's statements that without her care the Veteran would wear dirty clothes and not get cleaned up. The record also shows persistent suicidal ideation. All of the VA examinations noted passive suicidal ideation, and the March 2021 examination noted specific thoughts regarding methods. The Veteran does not exhibit symptoms such as gross impairment in thought processes, grossly inappropriate behavior or memory loss of a severity involving for names of close relatives, his own occupation, or own name, but the Board notes that the symptoms list in the general rating formula is non-exhaustive and finds that the overall severity of the Veteran's symptoms, particularly his persistent auditory and visual hallucinations and delusions, combined with his persistent suicidal ideation and neglect of personal hygiene, warrants a 100 percent rating. The Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. As the Veteran has been found to have total occupational and social impairment, a 100 percent initial rating is warranted. 38 C.F.R. § 4.130, DC 9411. REASONS FOR REMAND 1. Entitlement to service connection for chronic kidney disease 2. Entitlement to service connection for coronary artery disease 3. Entitlement to service connection for cerebrovascular accident 4. Entitlement to service connection for a migraine headache disability 5. Entitlement to service connection for a male reproductive disability, to include sterility, hypogonadism, and erectile disorder 6. Entitlement to service connection for thrombocytopenia 7. Entitlement to service connection for hypertension The Veteran has not yet been afforded a VA examination in connection with these issues. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record, 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information decide the issue. 38 U.S.C. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. Here, the record contains current diagnoses of chronic kidney disease, coronary artery disease, cerebral infarction, migraine headaches, erectile dysfunction, thrombocytopenia, and hypertension. The Veteran has reported exposure to polluted water when deployed to Haiti, exposure to contaminated water at Camp Lejeune, and vaccinations in service such as anthrax. Military records document service in Haiti and in-service vaccinations, though service treatment records are silent for record of an anthrax vaccination. Remand for VA examinations is therefore required. However, while military personnel records document that the Veteran was stationed at Camp Lejeune, his active service did not begin until July 1992. Veterans are presumed exposed to contaminants in the water supply at Camp Lejeune when they had no less than 30 days of service at Camp Lejeune during the period from August 1, 1953 to December 31, 1987. As the Veteran did not begin active service until several years after December 31, 1987, the presumption does not apply. 38 C.F.R. § 3.307(a)(7). The Board's review also indicates that there may be outstanding relevant private treatment records. December 2020 VA records noted that the Veteran saw non-VA providers for primary care, nephrology, cardiology, and rheumatology. However, the most recent private records in the file were added in November 2016. A remand is required to allow VA to obtain authorization and request these records. 8. Entitlement to service connection for systemic lupus erythematosus 9. Entitlement to service connection for scleroderma A November 2016 statement from a private provider said that the Veteran had many conditions and that his connective tissue disease "could very well be" related to deployment during service. The provider did not provide any reason for this finding and the opinion is therefore inadequate for review. The providers use of the word "could" also renders the opinion speculative. However, the Board notes that the threshold for determining whether the evidence "indicates" that there "may" be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. at 83. Here, the private opinion meets this low threshold. The Board's review indicates that the Veteran has not yet been provided a VA examination regarding these issues and remand is therefore required to provide VA examinations. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for the Veteran's private primary care, nephrology, cardiology, and rheumatology providers, as well as any other providers who treat his claimed disabilities. Make two requests for the authorized records from all identified providers unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any chronic kidney disease, coronary artery disease, cerebrovascular accident, migraine headache, male reproductive disability, thrombocytopenia, or hypertension found to be diagnosed. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current chronic kidney disease, coronary artery disease, cerebrovascular accident, migraine headache, male reproductive disability, thrombocytopenia, or hypertension disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include exposures to pollutants in Haiti and in-service vaccinations, including anthrax if present. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 3. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any connective tissue disease, to include lupus and scleroderma, found to be diagnosed. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current connective tissue disease, including lupus and scleroderma, found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran's active service, to include exposures to pollutants in Haiti and in-service vaccinations, including anthrax if present. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran's statements regarding the onset and persistence of his symptoms. 4. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Arnold 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.