Citation Nr: 21014896 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 17-13 387 DATE: March 16, 2021 ORDER Entitlement to an initial 50 percent rating, but no higher, for mood disorder is granted from October 18, 2012. REMANDED Entitlement to an initial rating in excess of 30 percent for asthma is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran’s mood disorder has been manifested by occupational and social impairment with reduced reliability and productivity throughout the appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial 50 percent rating, but no higher, for mood disorder are met from October 18, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March to August 1962. This case comes before the Board of Veterans’ Appeals (Board) on appeal from November 2011 and November 2014 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The issues on appeal were previously remanded by the Board in December 2017 for further development. 1. Entitlement to an initial 50 percent rating, but no higher, for mood disorder is granted from October 18, 2012. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, 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. Reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran’s mood disorder is rated pursuant to 38 C.F.R. § 4.130, DC 9435, which is rated under the General Rating Formula for Mental Disorders. A 30 percent rating is assigned 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, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9435. 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 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is assigned 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 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 own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a veteran’s symptoms, but it must also make findings as to how those symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Initially, the Board notes that the Veteran is also diagnosed with nonservice-connected adjustment disorder with anxiety. See March 2015 and July 2016 VA examination reports. The evidence of record does not sufficiently distinguish the symptoms of this disorder from his service-connected mood disorder. Thus, the Board’s instant discussion attributes all the Veteran’s mental health symptoms to his mood disorder. Mittleider v. West, 11 Vet. App. 181, 182 (1998). Upon review of the totality of the record, the Board finds that a higher rating of 50 percent is warranted for the Veteran’s mood disorder for the entire appeal period, effective October 18, 2012. This is based on symptoms such as depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. Such symptoms support an award of a 50 percent rating for the entire appeal period. Although the evidence indicates mild impairment of the Veteran’s social and occupational functioning, this is in conflict with other, more severe symptoms noted in the record, and the Board affords the Veteran the benefit of the doubt in this regard. A rating higher than 50 percent is not warranted at any point during the appeal period, as the Veteran’s symptoms are not of such a severity or frequency to result in occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In this regard, there is no evidence of suicidal or homicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name; or any other similar symptoms. The Board notes that the September 2013 Disability Benefits Questionnaire (DBQ) indicates near-continuous panic attacks or depression affecting the ability to function independently and difficulty in adapting to stressful circumstances, including work or a work-like setting. While there is evidence of depression, anxiety, and the Board does not doubt that the Veteran experiences difficulty with stressful circumstances, the Board finds that his symptoms are not so severe as to affect his ability to function independently, appropriately and effectively, nor could they be considered “near-continuous” in nature to warrant a higher evaluation. Furthermore, the Board acknowledges that the September 2013 DBQ indicates an intermittent inability to perform activities of daily living. However, despite noting this, the DBQ examiner described that the Veteran was able to shop, cook, shower, shave, do household chores, and found him capable of managing his financial affairs. Also, the record shows the Veteran’s appearance to be appropriate and within normal limits at all times. Moreover, the March 2015 and July 2016 VA examiners specifically determined that the Veteran displayed no difficulties with activities of daily living due to mental health issues. There are no other symptoms throughout the appeal period reflective of a 70 percent or 100 percent rating. Therefore, a rating higher than 50 percent is not warranted. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 30 percent for asthma is remanded. The Veteran’s asthma is currently rated as 30 percent disabling under 38 C.F.R. § 4.97, DC 6602. The Veteran has also been diagnosed with chronic obstructive pulmonary disorder (COPD), which the record indicates is secondary to his service-connected asthma. Under DC 6602, the next higher 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. A 100 percent rating is assigned for FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. During a January 2020 VA examination, the examiner diagnosed the Veteran with both asthma and COPD. It was also indicated that the Veteran required “daily use” of systemic high dose corticosteroids. The report specifically requested that, “if the Veteran has more than one respiratory condition,” to indicate the condition which is predominantly responsible for the need for corticosteroids. The examiner failed to state whether the Veteran’s daily use of systemic corticosteroids was used to treat asthma, COPD, or both respiratory disorders. A recent VA medical opinion obtained in May 2020 also did not provide clarification as to the daily use of systemic corticosteroids. On remand, a clarifying medical opinion should be obtained regarding which of the Veteran’s conditions is predominantly responsible for the need for corticosteroids. This determination is essential in appropriately rating the Veteran’s asthma disability. 3. Entitlement to a TDIU is remanded. The issue of entitlement to a TDIU is intertwined with the claim being remanded herein; therefore, the TDIU issue is deferred. Harris v. Derwinski, 1 Vet. App 180, 183 (1991). The matters are REMANDED for the following actions: Obtain an addendum opinion from a VA examiner, addressing the nature of the Veteran’s respiratory disorders. The claims file should be made available to and reviewed by the examiner. No additional examination is necessary, unless the examiner determines otherwise. The examiner is requested to clarify which of the Veteran’s respiratory condition(s) require the use of systemic corticosteroids, i. e., asthma, COPD, or both asthma and COPD. S. S. MAHONEY Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Casadei, 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.