Citation Nr: 21011623 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 15-33 366A DATE: March 2, 2021 ORDER Entitlement to a rating of 50 percent for depressive disorder, not otherwise specified, (depressive disorder) is granted. REMANDED Entitlement to service connection for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Depressive disorder caused occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating of 50 percent for depressive disorder have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14–17, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1965 to December 1968. The Veteran died in December 2015. In March 2020, the Regional Office (RO) made a favorable finding recognizing the Appellant as a substitute claimant. The matter originally included a separate claim for accrued benefits. However, the representative has clarified that the claim for accrued benefits is a not a separate claim, but that the Appellant was owed accrued benefits due to the Veteran’s other claims (rating for depressive disorder, PTSD, and TDIU) pending at the time of his death. See April 2020 addendum (clarifying the issues as entitlement to service connection for PTSD, an increased rating for depressive disorder, and TDIU). As there was no separate claim for accrued benefits, that issue is not considered here. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). 1. Depressive disorder The Veteran is currently rated at 30 percent disabling for major depressive disorder since August 2010. An increased rating is sought. The Board notes that any psychiatric disorder is rated under the General Rating Formula for Mental Disorders, and the criteria under this formula shall be considered no matter what diagnostic code is assigned. Here, because the diagnostic code contemplates the Veteran’s diagnosis and his psychiatric symptoms, the Board concludes that the Veteran is appropriately rated. The General Rating Formula for Mental Disorders provides that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: 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 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. A 100 percent rating is warranted 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; memory loss for names of close relatives, own occupation, or name. The such symptoms as language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means for example and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). A VA treatment record reports that in May 2010, the Veteran was seen by a psychiatrist for medications. The Veteran was treated for substance and alcohol abuse. The Veteran was drinking daily and had used illegal drugs for many years. The November 2010 VA examination noted that the Veteran had a history of alcohol and substance abuse. The examiner notes symptoms were reported as daily to weekly in frequency, of mild to moderate severity lasting intermittently during the day and consist of depression, loss of interest in activities, fatigue, excessive guilt, worry, difficulty making decisions, and anxiety. The Veteran reported good relationships with family, married for 40 years, with two children. The Veteran did not have any friends. His hobbies were reading, watching television, and cutting the grass. The examiner noted the Veteran described his mood as not too good. The Veteran said that he went to sleep about 2:30 in the morning and slept until about 5:00 (unclear whether AM or PM). The Veteran complained that in the last 5 to 6 years his memory and sleep problems were getting worse. He also complained of an anger management problem and getting mad quickly. He reported getting sad and emotional when watching news involving warfare. The VA examiner gave a diagnosis of moderate depressive disorder, not otherwise specified. The examiner reported some anxiety, but anxiety often accompanies a mood disorder and a separate diagnosis does not appear warranted for anxiety. The examiner reported that in service the Veteran was required to discharge his weapon in response to threats in a combat environment and were exposed to multiple combat-related traumas including witnessing the death and injury of U.S. military personnel and the death and injury of enemy military personnel and civilians. The examiner noted that alcohol or substance use caused current symptoms although the Veteran currently have been in treatment which will be helpful for any negative impact of alcohol/substance abuse. The examiner found intact social interaction skills, and that history gave no indication of significant change or problems with social interaction resulting in functional impairment, based on psychiatric symptoms. The examiner noted the Veteran’s prognosis as guarded. The examiner indicated that the Veteran was able to perform the activities of daily living and could manage his own finances. A May 2011 VA treatment note reported marginal grooming and hygiene, and mildly depressed mood with constricted affect. A May 2012 VA treatment notes he slept well and had a good mood. A July 2012 VA treatment note states he had poorly described recent onset hallucinations of people talking. An August 2012 VA examination report shows moderate depression. Occupational and social assessment was 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. The Veteran had insomnia and anxiety and recent auditory hallucinations (described as conversational voices, as if on a television, without anyone present), which had stopped after he started taking additional medication. The Veteran had severe anxiety. The Veteran had symptoms of depressed mode and problems with sleep but generally functioning well and has some meaningful personal relationships. The Veteran was married, described his wife as his best friend, and had good relationships with his children. The Veteran reported having no friends. He had been trained as an electrician, but repeatedly lost jobs (reportedly over 100 in heavy industry, often moving for work) due to his issues with mood (described altercation due to personal problems, including having a dozen physical altercation). He reported being sad most of the time, even after his medications had improved his mood. He reported crying spills lasting several hours multiple times a month. The only activities he continued to enjoy were sporting events and occasional volunteer work. He reported being feeling irritable, had difficulty following directions and making decision, had negative feelings about himself, low energy, and sleep disturbance (reporting if he woke up after 3am, he would not go back to sleep). The Veteran made a comment about having been in a physical altercation a year prior and having had a physical fight with his brother-in-law in the past leading to his arrest. The only symptoms listed were depressed mood, anxiety, and chronic sleep impairment. A September 2012 VA psychology note reports that he does not trust anyone but his wife. An additional note the same month stated he experienced auditory hallucinations. A May 2014 VA examination report indicates 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. He continued to have good relationships with his wife and kids. He continued to have depressed mood and sleep impairment. His mood presented as moderately dysphoric with generally restricted affect. Otherwise mental status was listed as largely normal, the Veteran was alert and fully oriented and his speech, thought content, and thought process were all normal. Hallucinations, delusions, and suicidal and homicidal ideation, intent, and planning were all denied. There was no observable impairment in attention, concentration, or memory. A September 2014 VA treatment note reported the Veteran was experiencing lapse of memory, brief dissociative episodes, and impaired concentration. July 2014 VA, January 2015 VA, and September 2015 VA treatment notes state the Veteran was depressed essentially all the time, he reported feeling lethargic, with difficulty or impaired concentration, and increasing forgetfulness. A May 2015 VA treatment note states that the Veteran had anxiety attack or attacks, but no number or frequency was given. In total, VA treatment records largely consist of reports of depression, irritability, lethargy, and anxiety. He attended group and individual therapy for many years. Even on medications, the Veteran reported continuing to have fits of anger. However, the Veteran’s affect, speech, and appearance were largely normal. As already noted, a 30 percent rating is assigned for occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. A 50 percent is assigned for symptoms resulting in occupational and social impairment with reduced reliability and productivity. Based on the above, the Board finds a 50 percent rating warranted. Here, the Veteran had symptoms (anger, irritability) resulting in many lost jobs due to getting into fights (occupational impairment) and having impaired social functioning (no friends). He had something more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, as he constantly lost jobs. This would tend towards a finding of reduced reliability and productivity. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Such is not shown here. Instead, the Veteran had very good family relations, was able to volunteer at times, and despite having repeatedly lost jobs in the past, reportedly never had problems finding new jobs. He also reported generally functioning well and had some meaningful personal relationships. He was found to be able to function independently, repeatedly denied suicidal or homicidal ideation, and there was no evidence of obsessional rituals which interfere with routine activities or speech intermittently illogical, obscure, or irrelevant. He reported being sad most of the time, but this did not affect his ability to function. There was no spatial disorientation. The Veteran did report impaired impulse control (such as unprovoked irritability with periods of violence) and there was reports of neglect of personal appearance and hygiene, but, overall, but these symptoms did not cause occupational and social impairment, with deficiencies in most areas. The Veteran did not have any difficulty in adapting to stressful circumstances (including work or a work-like setting) or an inability to establish and maintain effective relationships (as he had good family relations). The Veteran did have auditory hallucinations, impaired concentration, forgetfulness, and a report having had at least one anxiety attack. Even considering these symptoms, he did not have any symptoms of a severity to cause deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Prior to retirement, he did not have problems finding work and attended an educational program to become an electrician. He always maintained good family relations, including with his children. In conclusion, the Board finds that a disability rating of 50 percent, but not higher, is warranted. The preponderance of the evidence is against a rating in excess of 50 percent. REASONS FOR REMAND 1. & 2. PTSD & TDIU Service personnel records show service in Vietnam from August 1966 to August 1967. He reported being required to discharge his weapon in response to threats in a combat environment and was exposed to multiple combat-related traumas including witnessing the death and injury of U.S. military personnel and the death and injury of enemy military personnel and civilians. See, e.g. November 2010 VA PTSD examination. Two VA examinations, the one already noted above in November 2010 and an additional one in August 2012 both found that it was more likely that the Veteran had an acquired psychiatric disorder other than PTSD. A May 2014 VA examination did find PTSD but could not determine etiology without resorting to mere speculation. VA treatment records show many notations of PTSD, although at times the records also report there was no formal diagnosis. In addition, it is unclear from these treatment records what caused PTSD. For example, an October 2012 VA psychology treatment note indicates the Veteran experienced multiple traumatic events during Vietnam and at other times that have impacted him. Given the above, an addendum opinion is necessary to clarify if the Veteran had PTSD and whether it was due to service in Vietnam. Finally, because a decision on the issue of TDIU is inextricably intertwined with a claim for PTSD, as the Veteran does not meet the schedular criteria. A remand of the claim for TDIU is required. The matters are REMANDED for the following action: 1. Obtain an addendum opinion to determine the nature and etiology of posttraumatic stress disorder (PTSD) or any other non-depressive disorder(s). If the Veteran is diagnosed with PTSD, the examiner must explain whether it is at least as likely as not related to a verified in-service stressor, to include service in Vietnam and fear of hostile military or terrorist activity. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue of PTSD and TDIU. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Yoffe, 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.