Citation Nr: 21014174 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 14-14 799 DATE: March 11, 2021 ORDER Entitlement to an initial rating in excess of 30 percent from July 1, 2013 to April 26, 2016, for depressive disorder not otherwise specified (NOS) is denied. Entitlement to an initial compensable rating from April 27, 2016 onward, for unspecified anxiety disorder NOS is denied. REMANDED Entitlement to an initial rating in excess of 10 percent from May 16, 2011 to April 26, 2016, and in excess of 60 percent from April 27, 2016, for coronary artery disease (CAD) is remanded. Entitlement to an effective date from May 16, 2011 to April 26, 2016 for the grant of a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. For the period from July 1, 2013 to April 26, 2016, the Veteran’s depressive disorder NOS, at worst, has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; but not by occupational and social impairment with reduced reliability and productivity, by occupational and social impairment with deficiencies in most areas, or by total occupational and social impairment. 2. For the period from April 27, 2016 onward, the Veteran’s symptoms of unspecified anxiety disorder NOS are not severe enough either to interfere with occupational and social functioning or to require continuous medication. CONCLUSIONS OF LAW 1. For the period from July 1, 2013 to April 26, 2016, the criteria for the assignment of an initial rating in excess of 30 percent for the service-connected depressive disorder NOS have been not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.126, 4.130, Diagnostic Code 9434. 2. For the period from April 27, 2016 onward, the criteria for the assignment of an initial compensable rating for the service-connected unspecified anxiety disorder NOS have been not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.126, 4.130, Diagnostic Code 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1966 to October 1968. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2013, January 2014, and June 2016 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, the RO reduced the Veteran’s rating for his service-connected psychiatric disability from 30 percent to 0 percent, effective April 27, 2016 forward in a June 2016 rating decision (previously rated as depressive disorder, currently rated as unspecified anxiety disorder). At the time of the June 2016 rating decision, the Veteran already perfected his appeal as to the assigned rating for his psychiatric disability. Notably, neither the Veteran nor his representative has presented any argument concerning the propriety of the reduction, or otherwise suggested that appellate review of that reduction was being sought. Accordingly, the Board finds that the Veteran is not pursuing appellate review of the propriety of the rating reduction, and the issue currently before the Board has been characterized to reflect the Veteran’s current staged rating. Additionally, the issue of entitlement to TDIU was previously remanded in November 2016 by the Board and subsequently, the RO granted entitlement to TDIU, effective April 27, 2016, in a June 2016 rating decision. However, the Veteran submitted a notice of disagreement in September 2016 in which he claimed for an earlier effective date for his entitlement to TDIU. The Board notes that the current VA regulation requires the filing of a VA Form 21-0958 to initiate a notice of disagreement is applicable to claims and appeals filed on or after March 24, 2015. See 38 C.F.R. § 20.201; 79 Fed. Reg. 57660 -57698 (Sept. 25, 2014). Here, the Veteran completed the required VA Form 21-0958 Notice of Disagreement form. After a statement of the case was completed in March 2017 that continued the TDIU effective date of April 27, 2016, the Veteran timely appealed the issue and the issue of an earlier effective date for the grant of TDIU was certified to the Board. In January 2018 the Board denied the issues addressed herein, namely entitlement to higher initial ratings for the psychiatric disorder, higher initial ratings for CAD, and an effective date for TDIU prior to April 27, 2016. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), which issued an order in January 2020 granting a Joint Motion for Remand (JMR) filed by the Veteran’s representative and the VA Office of the General Counsel. Thus, these issues are back before the Board. Preliminary Matters The parties to the January 2020 JMR found that the Board in the January 2018 decision erred in sending a July 2017 notice letter to the Veteran’s representative at his former address in Oakley, Kansas, which was returned as undeliverable. They determined that the Board’s error was prejudicial because the Veteran’s representative planned to “prepare and present arguments before the Board of Veterans Appeals.” Subsequently in March 2020 an Appeal Notification Letter was sent to the Veteran and his representative advising them to submit any additional argument or evidence within 90 days. In October 2020 the Board granted the representative’s request for a 90 day extension to submit additional evidence, which to date the Veteran and his representative have not submitted. Thus, the Board has complied with the directives of the January 2020 JMR. Issues 1-2: Entitlement to an initial rating in excess of 30 percent from July 1, 2013 to April 26, 2016, for depressive disorder (NOS); and, entitlement to an initial compensable rating from April 27, 2016 onward, for unspecified anxiety disorder. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings”. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s service-connected depressive disorder and anxiety disorder are evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, Diagnostic Codes 9413, 9434. Under these criteria, a 10 percent rating is warranted for 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 continuous mediation. Id. A 30 percent rating is warranted for 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, or mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for 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 per 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted if the evidence establishes 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); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted if the evidence establishes there is 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 oneself 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 listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Federal Circuit has emphasized that the list of symptoms under a given rating is a nonexhaustive list, as indicated by the words “such as” that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. Other language in the decision indicates that the phrase “others of similar severity, frequency, and duration,” can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). It is the impact of the symptoms on occupational and social functioning that determines the rating. Id. FACTS In the instant case, the Veteran’s underlying claim of service connection for a psychiatric disorder was received on July 1, 2013. September 2013, September 2014, August 2015 VA treatment records noted the Veteran’s appearance as alert and oriented and that he was in no apparent distress. An October 2013 VA treatment record noted the Veteran complained of frustration and irritability since his heart problems. He reported he got mad that he could not do what he used to. During evaluation, the Veteran denied anhedonia or feeling depressed. The provider noted there was no history of psychotherapy and that the Veteran appeared well developed, well nourished, and neatly groomed, with normal gait and station. The provider noted the Veteran’s speech had normal rate, volume, articulation, coherence, and spontaneity and that his thought process was linear and goal directed. The provider noted there were no looseness of associations and there were no auditory or visual hallucinations, delusions, or paranoia. The Veteran denied suicidal and homicidal ideation, and was noted as having good insight, intact judgment, intact memory, intact language, and average fund of knowledge. The provider noted the Veteran was alert and oriented to time, person, and place and had no impairment of attention or concentration. The Veteran’s mood was noted as anxious and irritable and his affect was noted as congruent with mood. The provider recommended psychotherapy but noted that the Veteran was not interested. In an October 2013 VA initial posttraumatic stress disorder (PTSD) disability benefits questionnaire (DBQ) examination, the examiner noted the Veteran did not meet the diagnostic criteria for PTSD but that the Veteran had a diagnosis of depressive disorder NOS. The examiner noted that the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. During examination, the Veteran reported having a positive relationship with his wife, children, grandchild, and parents. The Veteran also endorsed having several friends but indicated that his fatigue prevented him from being as socially active as he desired. The Veteran reported that he worked as an electrician for 45 years following discharge from active service but that he was laid off after his heart attack in 2006. He reported that he went back to work after that but struggled to keep up with the demands due to his physical health and fatigue. The examiner noted the Veteran retired in 2010 and supported himself through Social Security. The Veteran reported that since the onset of his mental health symptoms in 2006 following his heart attack, he continued to endorse depressed mood, irritability, anxiety, and sleep disturbance. The Veteran reported he had depressed mood as a result of his reported loss of function. The Veteran denied suicidal or homicidal ideation. The examiner noted the Veteran’s symptoms included depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. An August 2015 VA treatment record noted that the Veteran had a negative PTSD screen and a negative depression screen. The Veteran indicated that he did not experience little interest or pleasure in doing things and also did not experience feeling down, depressed, or hopeless. In an April 2016 VA Mental Disorders DBQ examination, the examiner diagnosed unspecified anxiety disorder. The examiner noted that a mental disorder had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. During examination, the Veteran reported a generally positive relationship with his wife whom he referred as to “his crutch.” The Veteran reported that he and his wife continued to reside with and provide around the clock care for their adult son with special needs. The Veteran described sharing positive relationships with all of his children. The Veteran described continued active involvement in two different veterans organization. He reported he attended social gatherings and meetings for both organizations and also continued to visit and dine with friends weekly. The Veteran reported he had become more socially distant compared to how he was in the past. The April 2016 VA examiner noted there was no significant social impairment and no significant difficulties establishing and maintaining effective social relationships. The examiner noted the Veteran had been retired since 2010 and had worked as an electrician and also in construction for most of his adulthood. The examiner noted the Veteran’s reports that he was unable to find consistent work after he suffered a heart attack in 2006. The Veteran reported that he had been unable to keep up with the physical demands because of his poor physical health and that many companies were unwilling to give him work because of his inabilities to keep up with the physical demands of the jobs and the liabilities associated with employing an individual with poor physical health. The examiner noted that it appeared that most if not all of his impairments in occupational functioning were related to his physical health and not to his mental health. The Veteran denied experiencing any significant interpersonal problems while working and denied missing days/time from work from working. The examiner noted there were no significant occupational problems reported except for being unable to keep up with the physical demands of the jobs after his heart attack in 2006. The examiner noted there were no significant difficulties establishing or maintaining effective work relationships and there were no indications that the Veteran’s diagnosed unspecified anxiety disorder would preclude him from securing and maintaining substantially gainful employment consistent with his education and occupational experience. The April 2016 VA examiner noted that on examination, the Veteran presented with a description of symptoms consistent with unspecified anxiety disorder including generalized feelings of anxiety, irritability, and poor energy. The examiner indicated the Veteran’s poor energy was most likely due to the side effects of his heart medications. The examiner acknowledged that a review of records show the Veteran had previously endorsed depressed mood but the Veteran denied experiencing depressed mood during examination, noting that the Veteran was generally happy and positive in mood and attitude. The Veteran denied experiencing any sleep impairments and he reported he generally slept well and did not have any complaints about his sleep. The examiner noted that the Veteran sometimes thought of his combat related experiences in Vietnam and that he was reminded of his experience when triggered by certain smells and sounds. However, the Veteran indicated he did not dwell on them. The Veteran denied experiencing significant intrusive symptoms and was generally not avoidant of triggers. The examiner noted the Veteran’s willingness and desire to share his stories with other veterans in veterans organizations. The Veteran denied significant alterations in cognition and mood and denied significant arousal symptoms other than irritability. The Veteran denied suicidal or homicidal ideation and was in no persistent danger of hurting himself or others. The Veteran denied problems with impulse control. He denied delusions, hallucinations, or panic attacks. The examiner noted there were no indications that the Veteran was experiencing any difficulties understanding complex commands and there were no reported impairments in short and long term memory, judgment, abstract thinking, and motivation. The April 2016 VA examiner noted the Veteran was appropriately groomed and dressed in casual attire, was able to function independently, and was fully capable of performing ADLs. The examiner noted the Veteran and his wife continued to adequately and appropriately care for their son with special needs without any problems which the examiner found demonstrated the Veteran’s ability to adapt to stressful circumstances. The Veteran was noted as oriented to person, place, and time. He was noted as pleasant, polite, and cooperative, and rapport was established and maintained throughout the examination. The examiner noted the Veteran made consistent eye contact, his mood appeared euthymic, with affect appropriate to expressed mood. The examiner noted the Veteran became teary-eyed as he spoke about the loss of his friend to cancer. The Veteran’s thought process was noted as generally linear and goal-directed with no cognitive deficits noted and no abnormalities noted in speech. The examiner noted the Veteran had fair insight and judgment. After examination, the April 2016 VA examiner found that the Veteran did not meet the full diagnostic criteria for PTSD. The examiner acknowledged the Veteran’s reports of becoming more socially withdrawn; however, the examiner found that the Veteran did not appear to be experiencing any significant social impairment. ANALYSIS After a review of the evidence, the Board finds that prior to April 27, 2016, the Veteran’s symptoms are, at worst, consistent with a 30 percent rating. During this period on appeal, the Veteran’s depressive disorder NOS was manifested by symptoms of decreased ability to perform occupational tasks only during periods of significant stress, symptoms controlled by continuous medication, depressed mood, anger, irritability, anxiety, and sleep disturbance. The Board finds that symptomatology is consistent with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the criteria for a 30 percent rating. The Board recognizes that the symptoms noted in the rating schedule are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, even though not all the listed symptoms compatible with a 30 percent rating are shown, the Board concludes that the type and degrees of symptomatology contemplated for a 30 percent rating appear to be demonstrated throughout this period on appeal. The Board finds that a rating higher than 30 percent is not warranted. The Veteran has not demonstrated significant deficiencies in work or family relations. Although he reported fatigue had prevented him from being as socially active as he wanted, he reported positive relationships with his wife, children, grandchild, and parents, and that he maintained friendships. There is no evidence of an inability to establish and maintain effective relationships or more severe symptomatology such as total occupational or social impairment that would warrant any higher rating. From April 27, 2016, the Board finds that compensable rating for the service-connected unspecified anxiety disorder NOS is not warranted. The Board places great probative weight on the observations, diagnosis, and assessment provided by the April 2016 VA examiner who found that a mental disorder had been formally diagnosed, but symptoms were not severe enough to interfere with occupational and social functioning or to require continuous medication. The Board notes that the April 2016 VA examiner considered the Veteran’s statements and entire claims file in making this finding. Specifically, the Veteran had indicated he was more socially distant compared to how he was in the past. The examiner also noted the Veteran’s reports of anxiety, irritability, and poor energy. However, the examiner highlighted the Veteran’s general happy and positive mood and attitude, denial of sleep impairments, and ability to adapt to stressful circumstances. The examiner also noted that despite the Veteran’s reports of becoming more socially withdrawn, the Veteran did not appear to be experiencing any significant social impairment as he continued to share positive relationships with his wife, children, friends, and two veterans organizations. The examiner also specifically found that most if not all of his occupational impairments were related to his physical health and not his mental health. The examiner ultimately found that there were no indications that the Veteran’s diagnosed mental health disorder precluded him from securing and maintaining substantially gainful employment. As such, the Board finds that a compensable rating is not warranted for this period on appeal. While the Veteran reported irritability and anger, the evidence shows that he is able to manage his symptoms and maintained independent functionality. The evidence of record does not show symptoms causing occupational and social impairment or with deficiencies in most areas. Symptomatology commensurate with a 100 percent schedular rating, demonstrating total occupational and social impairment, is also not shown. The Veteran maintained a good relationship with his wife, family, and friends during the appeal, which would not be expected in someone with more severe deficiencies in social impairment, with deficiencies in most areas, or with total occupational and social impairment. Therefore, the Board finds that the preponderance of the evidence is against a finding of a greater level of occupational or social impairment than those currently assigned. The Board acknowledges that the Veteran is competent to report symptoms of a psychiatric disability. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran is not competent to identify a specific level of impairment of a psychiatric disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of his service-connected psychiatric disorders has been provided by VA medical professionals who have examined and treated him. The medical findings directly address the criteria under which the disability is evaluated. The Board finds these records to be competent and probative evidence of record, and therefore is accorded greater weight than the Veteran’s claim that he warrants higher ratings. Cartwright v. Derwinski, 2 Vet. App. 24 (1991). Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.130 with respect to determining the severity of his service-connected psychiatric disorders. Moray v. Brown, 2 Vet. App. 211 (1993); 38 C.F.R. § 3.159 (a)(1) and (2). In reaching its decision, the Board considered the benefit-of-the-doubt rule. However, the preponderance of the evidence is against the Veteran’s claim for an increased initial evaluation. Therefore, an initial evaluation in excess of 30 percent for depressive disorder NOS from July 1, 2013 to April 26, 2016, and a compensable evaluation for unspecified anxiety disorder NOS thereafter is not warranted. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Issues 3-4: Entitlement to an initial rating in excess of 10 percent from May 16, 2011 to April 26, 2016, and in excess of 60 percent from April 27, 2016, for CAD; and entitlement to an effective date from May 16, 2011 to April 26, 2016 for the grant of TDIU is remanded. Service connection for CAD has been in effect since May 16, 2011. The parties to the January 2020 JMR instructed in part that the Board “reexamine the evidence of record, seek any other evidence the Board feels is necessary.” The Veteran was last afforded a VA examination for his CAD in April 2016. Subsequently, in June 2018 private medical records were received that show the Veteran in July 2016 underwent a right femoral endarterectomy with bilateral iliac stenting. Thus, the Veteran should be afforded a VA examination to determine the current level of severity of his service-connected heart disorder. The claim of entitlement to TDIU from May 16, 2011 to April 26, 2016 is inextricably intertwined with the claim for a higher rating for CAD and must be deferred pending AOJ resolution of this claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (providing that two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Contact the Veteran and ask him to provide written authorization for VA to obtain any outstanding private treatment records. With any necessary assistance from the Veteran, obtain any outstanding VA medical records. All attempts associated therewith should be memorialized in the Veteran’s claims file. 2. Schedule the Veteran for a VA examination of his CAD by an examiner with appropriate expertise. The electronic claims file must be made accessible to the examiner for review in connection with the examination. The examiner should conduct the examination using the appropriate DBQ form. The examiner is requested to provide an opinion as to the impact of the CAD on the Veteran’s employability for the period from May 16, 2011 to April 26, 2016. Thomas H. O'Shay Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Mac, 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.