Citation Nr: 21022698 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 16-00 396 DATE: April 19, 2021 ORDER Entitlement to an initial evaluation higher than 50 percent for service-connected unspecified depressive disorder is denied. REMANDED Entitlement to service connection for hypertension, to include as secondary to service-connected unspecified depressive disorder, is remanded. FINDING OF FACT Throughout the appeal, unspecified depressive disorder has caused occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for an initial evaluation higher than 50 percent for service-connected unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1974 to April 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from May 2015 and May 2017 rating decisions of a Department of Veterans Affairs (VA) Regional Office. In January 2021 the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. The January 2021 hearing testimony only covered the claim of entitlement to service connection for hypertension because the Veteran did not request a hearing in connection with his appeal for an increased initial evaluation for the service-connected unspecified depressive disorder. The claim of entitlement to an increased initial rating for service-connected unspecified disorder was previously remanded by the Board in September 2018 and December 2019. As a result, outstanding relevant VA treatment records dated after September 2017 were obtained and associated with the record, the Veteran was given the opportunity to identify and provide releases for any outstanding relevant private treatment records, and an adequate VA examination and addendum opinion have been provided, as discussed in further detail below. This subsequent evidentiary development complies with the prior remand directives and the claim is ready for appellate review. See Stegall v. West, 11 Vet. App. 268 (1998). On his December 2015 VA Form 9, the Veteran wrote that his depressive disorder should be rated at least 30 percent. During the pendency of the appeal, an August 2020 rating decision assigned an initial 50 percent evaluation. The November 2020 appellant brief includes argument that the Veteran’s depressive disorder warrants the 50 percent evaluation currently assigned, however the representative also asserts VA erred by not assigning a higher evaluation. The increased rating claim has not been fully granted or withdrawn and remains before the Board. 1. Entitlement to an initial evaluation higher than 50 percent for service-connected unspecified depressive disorder is denied. The issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Under the General Formula for Mental Disorders (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). Under the General Formula, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. 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 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; or memory loss for names of close relatives, own occupation or own name. In this case, the preponderance of the evidence does not show impairment required for a disability rating of 70 percent or higher. The Veteran’s symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. The evidence establishes that the all psychiatric impairment is due to the service-connected unspecified depressive disorder rather than non-service-connected schizophrenia. The VA treatment records do not show a diagnosis of schizophrenia during the appeal period. A March 2015 VA examiner opined that 75 to 90 percent of the Veteran’s psychiatric impairment was due to non-service-connected schizophrenia. VA obtained an addendum opinion in March 2020 per the Board’s prior remand directives. The 2020 examiner adequately opined that the 2015 examiner’s diagnosis of schizophrenia was in error. In support of that opinion, the examiner explained the Veteran did not exhibit symptoms of the disorder, had not been treated for the disorder, and had not been diagnosed with schizophrenia in the past 40 years. Thus, all psychiatric impairment will be attributed to the service-connected disability. The Veteran underwent a VA mental disorder examination in March 2015. At that time, he reported living alone but visited family and attended church. During a typical day he exercised and attended a computer class at an educational opportunity center. The Veteran described difficulty maintaining a job after leaving the military, and depression when thinking about what he went through during his period of service. The examiner reviewed the Veteran’s recent treatment records, noting the Veteran did not have hallucinations and he did not take any medication. On mental status examination, the Veteran also denied hallucinations For VA rating purposes, the examiner documented symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and persistent delusions or hallucinations. Overall, the examiner concluded the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran underwent another VA mental disorder examination in July 2019. That examiner documented moderate unspecified depressive disorder that caused occupational and functional impairment with reduced reliability and productivity. At that examination, the Veteran reported he regularly saw family and friends and described his level of depression as typically 2 to 4 on a scale of 0 to 10 where 10 would be suicidal. The examiner assessed the severity of the depression overall as mild to moderate. The Veteran had not worked in 6 months and had experienced several recent deaths of family and friends. For VA rating purposes, the examiner identified symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. Mental status examination showed the Veteran to be appropriately groomed and oriented, with intact memory. Most recently, the Veteran underwent a VA examination in March 2020. That examiner diagnosed unspecified depressive disorder that produced occupational and social impairment with reduced reliability and productivity. At that time, the Veteran described having good relationships with family members and “plenty” of friends. He was employed in environmental services and reported the job was going “fair.” The examiner reviewed the Veteran’s treatment records and summarized his mood as down and depressed due to crime and recent deaths of friends and family. Pain affected his sleep, and he had lost weight due to depression and family stress. He sometimes felt hopeless and helpless, and he had irritability. His decision making was fine, and he had no delusions. For VA rating purposes, the examiner identified symptoms of depressed mood, mild memory loss, and a flattened affect. The examiner commented that the Veteran’s depression was recently worsened by the stress of several recent events and caused mild to moderate social and occupational impairment. VA treatment records reflect the Veteran generally presented with symptoms of depression associated with the deaths of multiple friends and family members, depression associated with chronic pain, and chronic sleep impairment. See March 2015, September 2015, May 2016, August 2016, March 2017, July 2019, and February 2020 VA treatment notes. During the appeal the Veteran maintained regular contact with family and friends and attended church. See January 2016, December 2017, and March 2018 VA treatment notes. Mental status examinations show the Veteran was consistently groomed and oriented, with intact judgment and thinking. He regularly denied suicidal or homicidal ideations and described himself as a nonviolent person who looked out for others in the community. See January and August 2019 VA treatment notes. The preponderance of the evidence demonstrates the overall severity of the service-connected unspecified depressive disorder more nearly approximates the criteria for a 50 percent rating for the entire period on appeal. In this regard, the VA treatment records, and July 2019 and March 2020 VA examination reports are more probative than the March 2015 examination report. The more probative evidence of record generally shows psychiatric symptoms contemplated by the 30 and 50 percent rating criteria. Specifically, the 30 and 50 percent rating criteria contemplate the noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, flattened affect, and difficulty in establishing and maintaining effective work and social relationships. The 2015 examiner identified symptoms contemplated by the 70 and 100 percent rating criteria—difficulty adapting to stressful circumstances, including a work-like setting, and persistent hallucinations and delusions. Regarding the latter, the evidence does not support a finding that the Veteran had persistent delusions or hallucinations during the appeal period. The Veteran has received regular mental health treatment through the VA healthcare system throughout the appeal period and has not endorsed symptoms of delusions or hallucinations at any point. The 2015 examiner’s report of symptoms of persistent delusions or hallucinations is inconsistent with the examiner’s other finding that the Veteran denied any hallucinations on mental status examination and that his treatment records did not show evidence of hallucinations. The only evidence of hallucinations identified by the 2015 examiner were documented in 1980. Due to these internal and external inconsistencies, the 2015 examiner’s indication of active persistent delusions or hallucinations is not credible. The 2020 VA examiner further clarified the Veteran had not exhibited symptoms of schizophrenia during the appeal period. The preponderance of the evidence is against a finding that the Veteran’s unspecified depressive disorder manifested in symptoms of persistent delusions or hallucinations. The evidence does show a degree of difficulty adapting to the stressful circumstances of a worklike setting consistent with the 2015 examiner’s findings, but the Veteran’s psychiatric symptoms overall more nearly approximate the 50 percent criteria. At a July 2015 VA mental health appointment, the Veteran reported he recently quit his job because he felt overworked, and he planned to pursue vocational rehabilitation. June and August 2016 VA treatment notes report the Veteran quit his regular job in July 2015 because he felt stressed and depressed and then started working various jobs in the building industry through a temporary employment agency. March and April 2017 VA treatment notes document the Veteran was participating in a work therapy program doing groundskeeping where he exceeded expectations. At a January 2019 VA appointment the Veteran reported a good year of work, but he was not current working due to the off-season. The July 2019 VA examiner also documented difficulty adapting to stressful circumstances such as work but opined that overall that symptom only resulted in occupational impairment with reduced reliability and productivity. A July 2019 VA treatment note reports the Veteran was in the process of getting a maintenance job, and the March 2020 examiner noted the Veteran was currently employed in environmental services. Generally, the evidence does not show difficulty in adapting to a worklike setting with accompanying occupational impairment to the degree contemplated by the 70 percent rating criteria. Overall, the totality of the Veteran’s symptoms more nearly approximates the 50 percent rating criteria throughout the appeal period. The preponderance of the evidence also shows that the Veteran’s psychiatric symptoms resulted in occupational impairment with reduced reliability and productivity consistent with the 50 percent rating criteria. See July 2019 and March 2020 VA examination reports. The VA treatment records show that during the pendency of the appeal the Veteran’s employment status has varied and been interrupted at times, but he has demonstrated some ability to obtain and maintain employment in the field for which he is trained. The 2019 and 2020 VA examiners’ assessment of the Veteran’s degree of occupational and social impairment was based on review of the record, objective examination, and interview of the Veteran. The examiners’ assessment is consistent with the treatment records and afforded great probative weight. The 2015 VA examiner found there was occupational and social impairment consistent with the 70 percent rating criteria, however those findings are less probative than those of the 2019 and 2020 VA examiners. The Veteran’s unspecified depressive disorder did not result in delusions or hallucinations during the appeal period, and the 2015 examiner’s assessment of the Veteran’s overall functioning is based in part on a finding the Veteran had persistent delusions or hallucinations. The 2015 examiner also noted impairment in school, family relations, and judgment; however, that degree of impairment is not supported by the record. Rather, a May 2015 VA treatment record specifically notes the Veteran had no impairment in cognition or interpersonal relationships. The 2015 examiner’s assessment also appears inconsistent with findings included elsewhere in the report. For example, the 2015 examiner noted the Veteran had an Associate Degree and was taking computer courses without mention of impairment in school, and that he maintained relationships with family and attended church without mention of impairment in those relationships. Overall, the 2015 examiner’s assessment of the Veteran’s occupational and social functioning is not supported by the record and not afforded probative weight. The Veteran has not testified that he is unemployable or totally impaired due to psychiatric symptoms, nor does the objective medical evidence support such a finding. Overall, the Veteran’s degree of occupational functioning is most consistent with the 50 percent rating criteria and no higher. In sum, the criteria for an initial evaluation higher than 50 percent for unspecified depressive disorder are not met. The preponderance of the evidence does not show social and occupational impairment with deficiencies in most areas, and there is no reasonable doubt to be resolved in the Veteran’s favor. Thus, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension, to include as secondary to service-connected unspecified depressive disorder is remanded. This issue is remanded to obtain a medical opinion on the etiology of the claimed hypertension. The Veteran underwent a VA general examination in January 2004. That examiner reported the Veteran had been treated for hypertension for 20 years, but the examiner did not provide an opinion on the etiology of the hypertension. The Veteran asserts the currently diagnosed hypertension had onset during his period of service and may be caused or aggravated by the service-connected unspecified depressive disorder. At the January 2021 hearing, he described in-service symptoms of syncope, dizziness, and headaches and the service treatment records (STRs) reflect those complaints. See e.g. April 1976 STR. Overall, there is a current disability, evidence of in-service symptoms, and an indication that the current disability may be etiologically related to the in service symptoms or a service-connected disability. The Board cannot make a fully-informed decision on the issue without a medical opinion; thus remand is required. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. Obtain an addendum opinion regarding the etiology of the hypertension from a VA examiner. The entire claims file must be made available to and be reviewed by the examiner. If an examination is deemed necessary, it shall be provided. An explanation for all opinions expressed must be provided. (a.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension had onset in, or is otherwise related to, active service. (b.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension manifested within one year of separation from active duty service (c.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension was caused by the service-connected unspecified depressive disorder. (d.) The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that hypertension was aggravated by the service-connected unspecified depressive disorder. (e.) The examiner must specifically address the following: 1) the STRs documenting multiple complaints of headache, and the April 1976 report of an elevated blood pressure reading, dizziness, and syncope; 2) the Veteran’s testimony that he experienced symptoms of hypertension in service, such as headache, dizziness, and syncope; and 3) the Veteran’s testimony that he was unable to seek treatment for those symptoms in the 10 years following separation from service because he did not have access to health care. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.