Citation Nr: 21009878 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-15 172 8DATE: February 23, 2021 ORDER An initial 70 percent rating for a depressive disorder is granted. REMANDED An increased rating in excess of 10 percent for a status post-injury of the left knee is remanded. A total disability rating based on individual unemployability (TDIU), prior to December 15, 2015, is remanded. FINDING OF FACT The evidence shows that throughout the period on appeal, the Veteran’s depressive disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but not by total social and occupational impairment. CONCLUSION OF LAW Throughout the period on appeal, the criteria for entitlement to a disability rating of 70 percent, but not higher, for the Veteran’s service-connected depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1-4.14, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to November 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2011 and September 2014 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Boston, Massachusetts. In May 2016, the RO also denied entitlement to a TDIU, which is a component of the Veteran’s increased rating claim that is on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2017. A transcript is of record. This issue was previously before the Board in March 2018 when it was remanded for further development. In March 2018, the Board remanded the issues on appeal and the issue of entitlement to service connection for a low back disability for additional development. While on remand, service connection for a low back disability was granted in an October 2020 rating decision. As this constituted a full grant of benefits as to that issue, it is no longer on appeal. Ab v. Brown, 6 Vet. App. 35 (1993). Increased Ratings VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2018). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7 (2018). Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990) (when the evidence supports the claim or is in relative equipoise, the claim will be granted). The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380 81 (Fed. Cir. 2000). The Board will summarize the relevant evidence as appropriate, and the analysis will focus on what the evidence shows, or fails to show, as to the claim. 1. An initial 70 percent rating for a depressive disorder is granted. The Veteran seeks a rating higher than 50 percent for his depressive disorder. A September 2014 rating decision awarded service connection for a depressive disorder with an effective date of January 4, 2011, which is the date of claim. For the reasons expressed below, the Board finds the Veteran’s depressive disorder symptoms more nearly approximate a 70 percent disability rating for the entire period on appeal. The Veteran’s depressive disorder is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. The Veteran is currently rated at 50 percent. The next highest rating is 70 percent. A 70 percent disability rating is warranted for 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 evaluation is warranted for total occupational and social impairment. This may be 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 symptoms associated with each evaluation under the General Rating Formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate evaluation of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating Formula. See id. Rather, VA must consider all symptoms of a claimant’s condition that affect his or her occupational and social impairment. If the evidence demonstrates the claimant’s psychiatric disorder produces symptoms and resulting occupational and social impairment equivalent to that set forth in the criteria for a given rating in the General Rating Formula, then the appropriate, equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. In this regard, 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. 38 C.F.R. § 4.126; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (noting that the “frequency, severity, and duration” of a Veteran’s symptoms “play an important role” in determining the disability level). A February 2011 Mental Health Psychiatry Outpatient Note reflects a diagnosis of recurrent major depression with dysphoria, loss of interest, sleep disturbance, fatigue, feelings of worthlessness, a diminished libido, and a chronic low mood. On examination, the Veteran’s demeanor was noted to be distressed, speech was of a normal rate and volume, and thought process was goal-oriented. No reported or observed hallucinations, delusions, or paranoid ideation were found. Cognition was without apparent deficit. He was found to be alert and fully oriented. His judgment was good. No suicidal or homicidal ideation was found. The Veteran was seen for his psychiatric condition in March 2012. The examiner notes that positive remarks were met with automatic negative thoughts. The examiner states the Veteran continues with intermittent sleep disturbance, dysphoria, dysthymia, exhibiting little interest, having trouble with concentration, fatigue, feeling badly about himself, and moving and speaking so slowly that others comment about it. The Veteran was seen for his psychiatric condition in September 2012. The Veteran reported having had a panic attack. He thought he was having a breakdown and recalled having trouble breathing and a fast heartrate. He reported his panic attacks are not as bad with his medication. He also reported feeling paranoid about his supervisor. On examination, the Veteran’s behavior was found to be normal. No voices or visions were reported. His thoughts were logical and goal-directed. He reported disturbed sleep. He denied being suicidal. A February 2013 Psychology Outpatient Note is of record. The Veteran reported ongoing challenges at work. On examination, he was casually dressed and oriented in three spheres. His mood was found to be somewhat anxious, congruent with affect, and his rate of speech was normal. Thought processes were normal and coherent with no evidence of distorted or psychotic symptoms. The Veteran did not endorse any current suicidal or homicidal ideation, plan, or intent. A September 2014 Mental Disorders Disability Benefits Questionnaire is of record. The Veteran’s service-connected depressive disorder was found to consist of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of an inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Initially, the examination report notes the Veteran’s depressive disorder symptoms include a depressed mood, loneliness, anxiety, sadness, hopelessness, sleep problems, irritability, and difficulty with relationships. The report notes that the Veteran is divorced, single, and not involved in any relationship. He has a distant relationship with his daughter and has “okay” relationships with his other children. The report also notes that the Veteran forgets to take his medication. The Veteran reported the following mental health issues: fear, loneliness, anxiety, sadness, and hopelessness. The report notes the Veteran recently got very angry with his supervisor at work, which cost him a promotion. The Veteran’s symptoms were found to include a depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; a difficulty in establishing and maintaining effective work and social relationships; and a difficulty in adapting to stressful circumstances, including work or a worklike setting. On examination, the Veteran’s appearance was found to be appropriate. His speech was normal. Mood was found to be anxious and depressed. His affect was congruent with mood. No depersonalization, derealization, hallucinations, or illusions were found. His thought processes were goal-directed. No preoccupations, obsessions, delusions, suicidal ideation, or homicidal ideation were found. He was oriented in four spheres. Commonsense, reasoning, and judgment were within normal limits. He reported persistent low energy and that he experiences depression and anxiety even when medicated. He reported problems with anger. The Veteran was found to be capable of managing his financial affairs. In November 2015, the Veteran’s psychologist noted that the Veteran suffers from significant mental health symptoms, including symptoms of depression and anxiety, in large part due to his multiple and significant medical issues he deals with on a daily basis. The letter notes the Veteran’s mental health and medical issues have kept him out of work and concludes that it seems unrealistic the Veteran would be able to maintain full-time employment for a significant duration of time. A February 2016 Psychology Outpatient Note notes the Veteran arrived on time for his appointment and was oriented in three spheres. He was found to be pleasant and easy to engage. He was appropriately groomed and casually dressed. He did not endorse suicidal or homicidal ideation intent or plan. On examination in April 2017, the Veteran reported ongoing difficulties managing and regulating his emotions related to the recent election and political atmosphere. He reported an increase in isolation and a continued sense of feeling unmotivated to change the way he lives his life. The Veteran decided to disengage from individual psychotherapy and declined group psychotherapy because he did not have the motivation to change his patterns of thinking or behavior. On examination, the Veteran was found to be oriented in three spheres and noted to be pleasant and easy to engage. He was appropriately groomed and casually dressed. He did not endorse suicidal ideation intent or plan. The Veteran attended a Board hearing in April 2017. He testified feeling like he will have a breakdown if he thinks about what is affecting him in the moment. He reported anxiety, sadness, and nausea. He also reported that he does not like to speak to people and does not want to go anywhere. He stated that he decided to isolate himself from family and friends and often goes several days without taking a shower. An September 2018 Psychiatry Outpatient Note is of record. The Veteran reported that he had been depressed or down more days than not for the past three months. He also endorsed anhedonia, loss of appetite, low energy and fatigue, feelings of worthlessness (“taking up space”), hopelessness related to the pattern of his symptoms, and rumination (“paranoia about social interactions” and that he is bothering others, is “too needy” or that others will think he is “crazy”), feelings of guilt or inadequacy (feeling unable to care for his mother), social isolation and difficulty concentrating, which was evident during conversation. The examiner noted that he had a long history of depressive episodes beginning in 2001 with minimal evidence to suggest long periods of time without depressive symptoms. These have been exacerbated by various stressors including his physical health (concern about becoming diabetic, knee surgery in 2011). The examiner stated that the severity of the Veteran’s depressive symptoms was severe. The Veteran also reported symptoms consistent with panic disorder and had three to four panic attacks a week. The Veteran reported that he did not have a social support system. He had been isolating more and had no friends and was fairly disconnected from his family. He reported that he was trying to repair the relationship with his mother and that his relationships with his children were getting better. He stated that he occasionally talked to one of his daughters and his son but his relationship with his other daughter was strained. He had people he occasionally had conversations with at the Soldiers’ home but he had been limiting these interactions due to concerns that he is bothering others and rumination following the interactions. The Veteran stated that he would like to rebuild his relationships with his family and friends. An October 2018 Psychiatry Outpatient Note is of record. The Veteran reported that his mood was “okay,” and his sleep, interest, energy, and concentration were down. Appetite and psychomotor activity were found to be within normal limits. He denied symptoms of mania, psychosis, suicidal ideation, or homicidal ideation. On examination, the Veteran appeared his stated age, was casually dressed, and exhibited good hygiene and grooming. No psychomotor abnormalities were observed. His speech was found to be of a normal rate, rhythm, and volume. His mood was depressed with a congruent restricted affect. His thought process was coherent, organized, and goal-directed. His thought content was found to be negative for audio or visual hallucinations. No delusional thoughts were detected. The Veteran denied suicidal and homicidal ideation, intent, or plan. Cognition was intact. Insight and judgment appeared good. The Veteran was seen in September 2019 for his mental health. The Veteran reported that his mood had improved, but his sleep, interest, energy, and concentration were down. Appetite and psychomotor activity were found to be within normal limits. He denied symptoms of mania, psychosis, suicidal ideation, or homicidal ideation. On examination, the Veteran appeared his stated age, was casually dressed, and exhibited good hygiene and grooming. No psychomotor abnormalities were observed. His speech was found to be of a normal rate, rhythm, and volume. His mood was depressed with a congruent, restricted affect. His thought process was coherent, organized, and goal-directed. His thought content was found to be negative for audio or visual hallucinations. No delusional thoughts were detected. The Veteran denied suicidal and homicidal ideation, intent, or plan. Cognition was intact. Insight and judgment appeared good. On VA examination in September 2020, the Veteran’s service-connected depressive disorder was found to consist of occupational and social impairment with reduced reliability and productivity. The examination report notes the Veteran is also diagnosed with an alcohol-use disorder. The examiner found it was not possible to differentiate the symptoms of each mental disorder diagnosed because the symptoms associated with each diagnosis have considerable overlap. The examiner found it is therefore impossible to distinguish which symptoms are due to which diagnosis. The examination report notes that the Veteran is divorced and lives at a soldiers’ home. He reported being single. The report notes that symptoms of anhedonia, irritability, poor judgment, poor concentration, and poor recall cause problems in his interpersonal and social functioning. He chooses not to interact with many people living at the soldiers’ home. The report states the Veteran is increasingly anxious interpersonally and suspicious of others. He is especially distracted and forgetful of recent events. He can be short over small issues due to his irritability. He has lost pleasure in formerly enjoyable activities such as socializing. He is anxious and in a low mood the majority of the time. He demonstrates poor judgment in his recurrent drinking and driving. He is neglectful of his self-care and hygiene, and he will go several days a month without showering or engaging in basic hygiene due to a lack of motivation and drive. He denied suicidal ideation but reported he has morbid ideation several days a week in that he thinks about death recurrently and worries suicide is likely given his medical issues. The report notes he has not been hospitalized for psychiatric reasons or attempted suicide. His symptoms were found to include a depressed mood; anxiety; near-continuous depression affecting the ability to function independently, appropriately, and effectively; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; disturbances of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; a difficulty adapting to stressful circumstances, including work or a work-like setting; a neglect of personal appearance and hygiene; and an intermittent inability to perform activities of daily living, including the maintenance of minimal personal hygiene. On examination, the Veteran was found to be alert and oriented to person, place, and time. His thoughts were logical, linear, and goal-oriented. His speech was fluent and normal in terms of rate and volume. He was polite and cooperative. He presented as casually dressed and appropriately groomed. His mood was calm. His affect was full ranging and congruent with mood. He denied homicidal ideation. He reported fleeting thoughts of suicide annually. He denied having a method or intention to act on the thoughts. The Veteran was found to be capable of managing his financial affairs. Overall, after careful review of the evidence, and granting the Veteran the benefit of the doubt in this matter, the Board finds his depressive disorder symptoms more closely approximate the diagnostic criteria for a 70 percent rating for the entire period on appeal. The Veteran’s VA treatment records document psychiatric symptoms that include anger; anxiety; chronic low energy; chronic low mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; a diminished libido; dysphoria; disinterest or detachment; fatigue; hopelessness; irritability; loneliness; mild memory loss; moving and speaking so slowly that others comment about it; panic attacks; paranoia; sadness; sleep disturbance and other sleep problems; suicidal ideation; trouble with concentration; and worthlessness. Notably, in November 2015, the Veteran’s psychologist reported that the Veteran suffers from significant mental health symptoms, and concluded it seems unrealistic the Veteran would be able to maintain full-time employment for a significant duration of time. However, a higher disability rating of 100 percent is unwarranted. As previously discussed, a maximum 100 percent rating requires 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; an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9434. Based on the evidence set forth above, the Board does not find that these criteria have been met. The Veteran continued working for most of the period on appeal, albeit with some conflicts at work, and he reported some friendships. On VA examination in September 2014, it was noted that he had an “okay” relationship with his son and two of his daughters and that he had close friends at the Soldiers’ home. His VA treatment records show that he maintains relationships with his children. In January 2016, he indicated that he had spent additional time with family members, visiting two of his daughters and hosting a visit from his son. In September 2017, he reported reengaging in friendships, going to the gym on a daily basis, using the sauna and connecting with family. In September 2018, he stated that over the past two weeks, his daughter was in town visiting and he was eating a healthier diet overall with her there. In February 2019 he reported engaging in pleasant activities related to getting his daughter a dog and helping her take care of the dog. He reported going out to dinner with his daughter in June 2019. In September 2019, he stated that some family had visited who he had not seen for a while. These records also show that he was walking with his daughter in February 2020, and in March 2020 family visited who he had not seen for a while and he had plans to see both of his daughters during the weekend. Neither of the VA examiners, in September 2014 or September 2020, found that the Veteran’s depressive disorder was manifested by total occupational and social impairment. As such, the preponderance of the evidence demonstrates that the Veteran’s depressive disorder symptoms do not cause both total occupational and social impairment. Therefore, having resolved all doubt in favor of the Veteran, the Board finds a 70 percent evaluation is warranted for the Veteran’s depressive disorder for the entire period on appeal. See 38 U.S.C. § 5107(b). However, the preponderance of the evidence demonstrates that an evaluation in excess of 70 percent is unwarranted at any point during the period on appeal. As such, this aspect of the claim must be denied. REASONS FOR REMAND 1. An increased rating in excess of 10 percent for a status post-injury of the left knee is remanded. The Veteran is currently assigned a 10 percent rating for his status post-injury of the left knee under Diagnostic Code 5260, based upon limitation of flexion. He was afforded a VA examination in October 2020. A review of the record shows the Veteran’s October 2020 VA knee examination does not comply with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59 (2018) or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large or insufficient knowledge of the specific examiner. The Board observes the October 2020 VA knee examination does not include all of the following: active range of motion testing results, passive range of motion testing results, weightbearing range of motion testing results, and nonweightbearing range of motion testing results. Furthermore, the examiner notes flare-ups in the form of pain with increased activity of the knees, which last one to two days. No range of motion measurements during a flare-up were provided. This finding is inconsistent with the record. For example, a June 2019 Primary Care Note states the Veteran “complains of continuing pain in his left knee … [and] that it flared up particularly badly when fishing recently and he had to sit down to rest for an hour afterwards.” In October 2020, a nurse practitioner opined that the Veteran’s service-connected knee conditions cause bilateral knee pain with weightbearing activities and a decrease in the range of motion of the knees. Finally, the Veteran’s April 2017 Board hearing transcript includes testimony that suggests the Veteran experiences flare-ups. As a result, a new knee examination is warranted that is consistent with the Veteran’s medical record. 2. A TDIU, prior to December 15, 2015, is remanded. An October 2020 rating decision granted the Veteran’s TDIU claim from December 15, 2015, forward. However, the Veteran’s claim for a TDIU is a component of his increased rating claim(s) on appeal since January 4, 2011. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the issue of entitlement to a TDIU prior to December 15, 2015, remains on appeal before the Board. However, the RO did not issue a supplemental statement of the case addressing this issue following the award of a TDIU as of December 15, 2015. This must be accomplished on remand. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records and any outstanding private medical records identified by the Veteran as pertinent to his claim. 2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected left knee condition. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaires should be filled out. The examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e., active or passive, weightbearing or non-weightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report that includes a complete rationale for all opinions and conclusions reached. 3. Finally, readjudicate the Veteran's claims of entitlement to an increased rating in excess of 10 percent for a status post-injury of the left knee and entitlement to a TDIU prior to December 15, 2015. If any of the benefits sought remain denied, issue a supplemental statement of the case (SSOC) and return the case to the Board. P. M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Buck Denton 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.