Citation Nr: 21015421 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 13-09 146 DATE: March 17, 2021 ORDER Entitlement to an evaluation of 70 percent, but no higher, for service-connected depressive disorder for the entire period on appeal is granted. REMANDED Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities, is remanded. Entitlement to service connection for a sleep disorder, to include sleep apnea due to service-connected disabilities, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right elbow limitation of supination and pronation to July 31, 2020, and in excess of 20 percent thereafter, is remanded. Entitlement to an initial rating in excess of 10 percent for service-connected right elbow limitation of flexion is remanded. FINDING OF FACT For the entire period on appeal, the Veteran’s service connected depressive disorder more closely approximates occupational and social impairment with deficiencies in most areas, consistent with a 70 percent disability rating. CONCLUSION OF LAW For the period of appeal, the criteria for an initial disability rating of 70 percent, but no greater, for service-connected depressive disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1998 to January 2001. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The matter was previously remanded by the Board in a January 2018 rating decision for additional development and has now returned for further appellate review. Disability Ratings Disability evaluations are determined by comparing the Veteran’s present symptomatology with the criteria set forth in the VA’s Schedule for Ratings Disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Higher ratings are assigned if the disability more nearly approximates the criteria for that rating; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence the benefit of the doubt is to be resolved in the Veteran’s favor. 38 U.S.C. § 5107(b). 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,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an evaluation of 70 percent for service-connected depressive disorder for the entire period on appeal As an initial matter, the Board observes that the RO increased the Veteran’s evaluation for service-connected depressive disorder from 30 percent to 50 percent, effective July 31, 2020 in a September 2020 rating decision. However, as this is not a full grant of the benefits, the appeal continues. Under the General Formula, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Board concludes that the Veteran’s depressive disorder symptoms more closely approximated the symptoms associated with a 70 percent rating and did not cause the level of impairment required for a disability rating of 100 percent. Accordingly, the Veteran’s symptoms have resulted in a level of impairment that most closely approximates the level of impairment associated with a 70 percent rating. The Veteran’s depressive disorder is rated under Diagnostic Code 9434. 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 assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned when symptoms such 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; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. VA treatment records show that throughout the period on appeal, the Veteran has experienced symptoms of severe frustration, difficulty focusing on positive aspects, passive suicidal ideation, irritability, anxiety, weight changes, sleep disturbances, and memory impairments. The Veteran was hospitalized due to psychiatric symptoms including thoughts of harming others for a brief period in July 2019. Additionally, in December 2018 the Veteran reported a behavioral outburst at work that caused him problems with his employer. The Veteran received VA examinations in May 2012 and August 2020 regarding the severity of his service-connected depressive disorder. In the May 2012 examination report, the examiner noted that the Veteran exhibited the following symptoms: irritability, sadness, melancholia, easily upset and angered, difficulty falling asleep, feeling overwhelmed, poor concentration and difficulty with memory, anxiety, suspiciousness, flattened affect, disturbances of motivation and mood, and difficulty establishing and maintaining effective work and social relationships. The Veteran also reported to the examiner that he isolates and hits walls when he is angry. The August 2020 VA examiner noted that the Veteran experiences depressed mood, chronic sleep impairment, disturbances of motivation and mood, suicidal ideation, and impoverished short term memory. The examiner noted that the Veteran is considered to be of increased risk of self-harm. After a careful consideration of the frequency, severity, and duration of the Veteran’s psychiatric symptoms, and in light of the Court’s determination in Bankhead, the Board finds that the Veteran’s service-connected psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board notes that in addition to the frequent suicidal ideation demonstrated by the record, the Veteran’s other psychiatric symptoms, to include near-continuous depression, anxiety, anger, sleep disorder, irritability, suspiciousness, impaired impulse control (such as unprovoked irritability with periods of violence), and inability to establish and maintain effective relationships, have clearly caused significant occupational and social impairment. Thus, the Board finds a 70 percent rating is warranted for the Veteran’s depressive disorder throughout the period of the claim. See VazquezClaudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 19. The Board is cognizant that suicidal ideation is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead, 29 Vet. App. at 19. However, the severity, frequency, and duration of the Veteran’s suicidal ideation have not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving harm to self or others in existing treatment records, and during the May 2012 and August 2020 VA examinations. Further, mental status examinations in VA treatment records and the May 2012 and August 2020 VA examination reports indicate that the Veteran has not exhibited gross impairment in thought process or content, auditory or visual hallucinations, delusions, disorientation to time, place, person, and situation, or memory loss for names of close relatives, own occupation, or own name. Additionally, in the VA examinations of record the examiners indicated that the Veteran’s psychiatric disorder did not result in total occupational and social impairment. The Board observes that while the Veteran experiences symptoms contemplated by a 100 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. In sum, after a review of the record and having resolved all reasonable doubt in favor of the Veteran, the Board finds that disability due to the Veteran’s service-connected psychiatric disorder has most closely approximated to occupational and social impairment with deficiencies in most areas. As such, a 70 percent disability rating, but no higher, is warranted for the Veteran’s service-connected psychiatric disorder. REASONS FOR REMAND 1. Entitlement to service connection for a back disability, to include as secondary to service-connected disabilities, is remanded. Subsequent to the January 2018 Board remand, the Veteran received a VA examination regarding the nature and etiology of his claimed back disability in August 2020. The examiner opined that the Veteran’s claimed back condition was less likely than not incurred in or caused by the Veteran’s active duty service. By way of rationale, the examiner merely stated that there was “no evidence related to [the] lower back condition” besides one entry in the Veteran’s service treatment records. The examiner failed to provide any further explanation or provide an opinion regarding whether the condition is etiologically related to his service-connected disabilities. Accordingly, the examination is inadequate for determining entitlement to service-connection for a back disability and remand is warranted to obtain a new VA examination. 2. Entitlement to service connection for a sleep disorder, to include sleep apnea due to service-connected disabilities, is remanded. Pursuant to the January 2018 Board remand, the Veteran received a VA examination regarding the nature and etiology of his claimed sleep disorder in August 2020. The examiner opined that “[t]here is no separate diagnosis of sleep disorder warranted. The sleep problem is considered a symptom of the service connected depressive disorder but can also be a manifestation of the Veteran’s sleep apnea or other service connected conditions related to pain.” The examiner noted that the Veteran is diagnosed with sleep apnea, but failed to provide an opinion regarding the nature and etiology of the Veteran’s sleep apnea. Accordingly, the Board finds that remand is warranted to obtain an opinion regarding the Veteran’s noted sleep apnea or any other diagnosed sleep disorders. 3. Entitlement to an initial rating in excess of 10 percent for service-connected right elbow limitation of supination and pronation to July 31, 2020, and in excess of 20 percent thereafter, and an initial rating in excess of 10 percent for service connected right elbow limitation of flexion is remanded. The Veteran received a VA examination regarding the severity of his service-connected right elbow conditions in August 2020. This opinion, however, appears to be internally inconsistent, as the examiner stated that the Veteran did not experience flare-ups of his elbow conditions, but proceeded to state that the Veteran experienced functional loss as a result of pain during flare-ups. The opinion does not contain information regarding the frequency, duration, characteristics, precipitating and alleviating factors, and the severity of the flare-ups. As such, the Board finds the August 2020 examination report is inadequate for adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); see also Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Thus, a remand is warranted to obtain an adequate VA examination and opinion. The Board also notes that the Veteran received a VA examination in May 2012 regarding the nature and severity of the Veteran’s claimed elbow condition, however while this examination noted that the Veteran experienced flare-ups of the elbow condition, the examiner did not obtain the requisite information regarding frequency, duration, characteristics, precipitating and alleviating factors, and severity of flare-ups as required by Sharp v. Shulkin. The examination also failed to include the required testing for pain on both active and passive motion nor in weight-bearing and nonweight-bearing as required by Correia v. McDonald, 28 Vet. App. 158 (2016). As the VA examinations provided have been deemed inadequate, it is necessary to obtain a retrospective opinion to determine the severity of the Veteran’s cervical condition during each of the distinct periods outlined by this appeal. The matters are REMANDED for the following action: 1. Afford the Veteran an examination(s) with an examiner(s) of appropriate expertise to address the etiology of the Veteran’s claimed back disability and sleep disorder, to include sleep apnea. All pertinent evidence of record must be made available to and reviewed by the examiner(s). Any indicated studies should be performed. Following a review of the relevant records and lay statements, the examiner should state an opinion with respect to whether the claimed back disability and/or claimed sleep disorder, to include sleep apnea, is at least as likely as not (a 50 percent probability or greater) either directly related to military service or is proximately due to or aggravated by the Veteran’s service connected disabilities. The examiner(s) must specifically address the Veteran’s reports relative to the etiology of the claimed disabilities. If an examiner is unable to provide any required opinion, he or she should explain why. If an examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. 2. Afford the Veteran an examination with an examiner of appropriate expertise to address the current severity of the Veteran’s service-connected right elbow disabilities. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to Veteran’s right shoulder condition alone and discuss the effect of the Veteran’s right shoulder condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. The Veteran’s subjective symptoms must be fully considered along with the objective findings shown on examination. The joints should be tested for pain on both active and passive range of motion in weight bearing and non-weight bearing and, where applicable, compared with the range of the opposite joint. 3. Obtain a retrospective addendum opinion from a qualified physician, preferably the same physician as above, regarding the severity of the Veteran’s service-connected right elbow disabilities for each of the distinct periods outlined by this appeal prior to this decision. The physician should provide specific measurements regarding functional loss in terms of degrees of motion due to such factors as pain, weakness, fatigability, and incoordination due to repetitive motions or due to flare-ups. The examiner should review the claims file and should identify all symptoms and functional impairment due to the service-connected right elbow disabilities alone and discuss the effect of the Veteran’s service connected right elbow disabilities on occupational functioning and activities of daily living. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Gorum, Associate 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.