Citation Nr: 21010304 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 18-33 471 DATE: February 24, 2021 ORDER Entitlement to an increased, 50 percent disability rating, but not higher, for unspecified depressive disorder is granted. REMANDED The claim for an entitlement to a total disability rating based on an individual unemployability (TDIU) is remanded. The claim for an entitlement to special monthly compensation (SMC), at the housebound rate, is remanded. FINDING OF FACT The Veteran unspecified depressive disorder more closely approximates an occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an increased, 50 percent disability rating, but not greater, for unspecified depressive disorder have been met. 38 U.S.C. § 1155; 38C.F.R. 3.102, 4.1, 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 September 1967 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Veterans Benefits Administration (VBA) Regional Office (RO) in Winston Salem, North Carolina. In a July 2019 decision, the Board denied the appeal of an increased rating, in excess of 30 percent, for the service-connected depressive disorder. Thereafter, the Veteran appealed the Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In a January 2020 Joint Motion for Partial Remand (JMPR), the parties stipulated that a vacatur and remand was warranted for the part of the July 2019 Board decision that denied entitlement to an initial rating higher than 30 percent, because the Board erred by providing an inadequate statement of reasons or bases for denying a rating higher than 30 percent for unspecified depressive disorder. In a February 2020 Order, CAVC vacated and remanded the part of the July 2019 Board decision that denied the increased rating claim for depressive disorder, for further additional development. Increased Rating Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant 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 criteria for evaluating depressive disorder is found in the General Rating Formula for Mental Disorders, under 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent rating is warranted where 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 in understanding complex commands, impairment of short and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and, difficultly 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); and inability to establish and maintain effective relationships. Id. A 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; 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. Id. The symptoms listed above serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and are not intended to constitute an exhaustive list. See Mauerhan v. Principi, 16 Vet. App. 436, 442 – 44 (2002). According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. See 38 C.F.R. § 4.126(a). The Veteran is currently assigned a 30 percent disability rating for his service-connected depressive disorder. 38 C.F.R. §§ 4.29, 4.130, DC 9434. In a June 2018 correspondence, the Veteran asserted that his depression is getting worse. He reported, among other complaints, that he is “very, very angry”; he is easily irritated by “inept people”; he has considered suicide because of the chronic pain he is constantly in; he has impaired impulse control and difficulty in adapting to stressful situations; he has extremely poor judgement, as he tells people exactly what he thinks, with no qualms for the consequences; he has little to no motivation, and he is exhausted when he returns from work, and does not do anything, other than go to work and come home; he has no social circles, and no friends; he has short and long term memory loss; and he wakes up in the middle of the night worrying as to how he can pay the bills and what will happen when his wife dies. During the course of the appeal, the Veteran underwent numerous VA examinations for an assessment of the severity of this unspecified depressive disorder. After these examinations, VA examiners determined that the symptoms that are applicable to the Veteran’s mental disability, include depressed mood; anxiety; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; impaired impulse control, such as unprovoked irritability with periods of violence; and suicidal ideation. See e.g. October 2016 VA Examination for Mental Disorders; see also April 2018 VA Examination for Mental Disorders; see too, December 2019 VA Examination for Mental Disorders; see too January 2021 VA Examination for Mental Disorders. In an overall assessment of the severity of the Veteran unspecified mood disorder, the October 2016 VA examiner summarized the Veteran’s level of occupational and social impairment as an 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. However, in the April 2018 VA examination, the VA examiner summarized the Veteran’s level of occupational and social impairment as an 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. However, in the December 2019 and January 2021 VA examinations, the VA examiner summarized the Veteran’s level of occupational and social impairment as an occupational and social impairment with reduced reliability and productivity. Nonetheless, after a review of all probative medical evidence, the Board finds that an increased rating, of 50 percent is warranted. Specifically, and overall, the medical evidence suggests that the severity of the Veteran’s unspecified depressive disorder more closely approximates an occupational and social impairment with reduced reliability and productivity, due to symptoms including, 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; mild memory loss, such as forgetting names, directions or recent event; impaired impulse control, such as unprovoked irritability with periods of violence; and episodic suicidal ideation. Nonetheless, in support of his claim, the Veteran submitted an August 2016 disability benefits questionnaire (DBQ) for his mental disability, which suggests that the Veteran’s symptoms of his mental disability are more severe. In this DBQ, a private licensed professional counselor, Dr. M.E.T.S., summarized the Veteran’s level of occupational and social impairment with regards to his mood disorder as an occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. She determined that the symptoms that are applicable to the Veteran’s diagnoses, include depressed mood; anxiety; chronic sleep impairment; flattened affect; circumstantial, circumlocutory or stereotyped speech; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. In an accompanying August 2016 correspondence, Dr. M.E.T.S. noted, in pertinent part, that it is her professional opinion that the Veteran suffers from a mood disorder due to ischemic heart disease and left leg condition/nerve damage related to bypass surgery. Although she mentioned that he had been working as a maintenance associate/supervisor at Walmart at the time, and for the previous two years from the date of this examination, she did not indicate any particular issues with his employment, relative to his mental disability. However, she noted that the Veteran recognized a significant strain in his interactions with others, particularly loved ones. She also stated that he used to enjoy golfing, going to the beach, and playing tennis, but he no longer participates in these activities, and that he does not have the physical prowess or energy or motivation to engage in these pastimes. She also stated that the Veteran finds it increasingly difficult to “keep going from day to day”, and admitted to having suicidal ideation with no active intent. She also noted that the Veteran has a foreshortened sense of future and is plagued with worries about the stability of his family, should he meet an untimely death; the Veteran admitted to having fleeting suicidal thoughts, as he continues to grieve a lifestyle he once had as a physically and emotionally capable businessman. However, this DBQ and evaluative report on the severity of the Veteran’s mental disability is inconsistent with the overall medical evidence, as it documents findings, manifestations and/or other psychiatric symptoms, such as, for example, circumstantial, circumlocutory or stereotyped speech and impaired abstract thinking, that are not documented in any other medical treatment records and/or VA examination reports. The Board has considered whether these findings represent a worsening of disability, however, the contemporaneous records, dated both before and after the August 2016 private examination do not include descriptions of the disability that are anywhere near those described in this private report. Thus, the Board finds that it is of little probative value. See Wilson v. Derwinski, 2 Vet. App. 614 (1992) (holding that the Board is free to assess medical evidence and it is not obligated to accept a physician’s opinion). Nonetheless, the Veteran asserts that the frequency, severity, and duration of the Veteran’s psychological symptoms more closely approximate a 70 percent disability rating throughout the appellate period. See January 2021 Appellate Brief. To the contrary, however, the Board finds that an even higher increased rating of 70 percent is not warranted for the service-connected unspecified depressive disorder. The evidence fails to show deficiencies in most areas due to symptoms similar or equivalent in severity to those listed in the rating criteria for a 70 percent rating, such as, for example, impaired judgment; impaired abstract thinking; spatial disorientation; grossly inappropriate behavior; persistent danger of hurting himself or others; neglect of personal appearance or hygiene; intermittent inability to perform activities of daily living; or disorientation to place or time. See Vazquez-Claudio v. Shinseki, 713 F. 3d 112, 118 (Fed. Cir. 2013) (holding that a 70 percent disability rating requires sufficient symptoms of the kind listed in the 70 percent requirements, or others of similar severity, frequency or duration, that cause occupational and social impairment with deficiencies in most areas such as those enumerated in the regulation). Moreover, deficiencies in most areas such as work, family relations, judgment, thinking, or mood are not shown. Specifically, for example, VA examiners consistently observed that that the Veteran was well-groomed and neatly dressed; he was fully oriented to person, place, time, and circumstance; he was fully engaged and exhibited good eye contact throughout the assessment; his speech was clear and of normal rate and tone; thought processes were congruent and goal directed; and there was no evidence of psychosis, delusions or perceptual disturbance. See e.g. October 2016 VA Examination for Mental Disorders; see also April 2018 VA Examination for Mental Disorders; see too, December 2019 VA Examination for Mental Disorders; see too January 2021 VA Examination for Mental Disorders. Additionally, the medical evidence expressly reflects that he is capable of performing activities of daily living, and does these routinely. See e.g. October 2016 VA Examination Report; see also April 2018 VA Examination Report (stating that the only thing he can get accomplished after work is “puttying” around in the vegetable garden, and that he walks approximately 5 – 6 miles a day); see too, January 2021 VA Examination Report (reflecting that the Veteran indicated that he engages in some minimal social activities with his family, though mostly isolated with minimal interpersonal interactions or leisure activities). Summarily, these examples are not suggestive of spatial disorientation, neglect of personal appearance or hygiene, intermittent inability to perform activities of daily living, or disorientation to place or time. Further, the medical evidence has not shown that the Veteran has manifested symptoms of impaired judgment, impaired abstract thinking, grossly inappropriate behavior, or ; persistent danger of hurting himself or others, due to his service-connected unspecified depressive disorder. Although mild memory loss, such as forgetting names, directions or recent event, is noted, this symptom is only noted in the December 2019 VA examination report. Additionally, manifestations of impaired impulse control, such as unprovoked irritability with periods of violence is only noted in the August 2016 DBQ and April 2018 VA examination reports. Further, the Veteran’s report of suicidal ideation, fortunately is episodic, as he denied having suicidal ideation in some of his medical treatment records and examinations, including his most recent VA examination. See e.g. August 2016 Nursing Inpatient Evaluation Note (elicited on the same month as the August 2016 private DBQ, in which the Veteran reported having suicidal ideation); see also October 2016 VA Examination Report (provided two months after the August 2016 private DBQ, in which he reported having suicidal ideation); see too, December 2020 Primary Care Nursing Note; see too January 2021 VA Examination Report. Thus, the severity, frequency, and duration of these symptoms do not support a 70 percent disability. Notwithstanding, these symptoms were considered and accounted for, in the assignment of an increased rating for 50 percent. It follows, that the criteria for a 100 percent schedular rating is not warranted as well. As discussed above, that criteria require a disability of such severity as to result in total social and occupational impairment. Neither the Veteran, the private examiner, nor the VA examiners or treatment providers, describe that level of disability. Therefore, based on the foregoing reasons and bases, an increased rating of no higher than 50 percent, for the Veteran’s service-connected unspecified mood disorder, is granted. REASONS FOR REMAND The Board regrets further delay, but finds that additional development is necessary before a decision may be rendered on the remaining issues on appeal. 1. TDIU The Veteran asserts that his service-connected disabilities of depressive disorder, coronary artery disease, diabetes mellitus, left lower extremity neuropathy, chest and left leg surgical scars, and left foot 2nd metatarsal fracture prevent him from securing or following any substantial gainful occupation. See January 2021 Application for Increased Compensation Based on Unemployability; see also January 2021 Appellate Brief. In a February 2021 correspondence, the RO informed the Veteran that it needed additional evidence for adjudicating this claim, and specifically, a completed and executed VA Form 21-4192: Request for Employment Information (Employment Verification Form). As sufficient time has not elapsed for the Veteran to request and obtain this information from his former employer/employers, this issue is deferred and remanded, pending receipt of this pertinent, outstanding information, as well as any other pertinent evidence. 2. Special Monthly Compensation The Veteran asserts that the Board must consider whether the Veteran is entitled to SMC at the housebound rate, because “the evidence shows that the Veteran’s depressive disorder alone renders him unemployable, and he suffers from additional disabilities that have a combined rating of 60 percent or more. See January 2021 Appellate Brief. As the award of special monthly compensation is contingent on the outcome of the TDIU claim, the Board finds that this issue is closely intertwined with the TDIU claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a claim is inextricably intertwined with another claim, the claims must be adjudicated together). Therefore, this issue is also deferred and remanded, pending the outcome of the TDIU claim. The matters are REMANDED for the following action: After affording the Veteran a reasonable time to respond to the February 2021 development letter and obtaining the employment verification form, if submitted, re-adjudicate the TDIU and SMC claims. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board V-N. Pratt 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.