Citation Nr: 21026563 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-45 517 DATE: May 3, 2021 ORDER Entitlement to a 50 percent rating, but no higher, for service-connected unspecified depressive disorder is granted from June 22, 2016. REMANDED Entitlement to a total disability rating due to individual unemployability (TDIU) is remanded. FINDING OF FACT Since June 22, 2016, the Veteran's depressive disorder more closely approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent rating, but no higher, for service-connected depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 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 United States Army from April 1967 to January 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) from a February 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which continued a 10 percent rating for service-connected depressive disorder. In a January 2021 rating decision, the RO increased the Veteran's depressive disorder rating to 30 percent, effective December 11, 2020. In February 2021, the Veteran testified before the undersigned Veterans Law Judge at a virtual Board hearing. At the hearing, the Veteran's representative waived initial consideration by the RO of the December 2020 C&P psychiatric examination. See February 2021 Hearing Transcript (Tr.) at 2. The Board notes that in a November 2016 Correspondence, the Veteran asserted that he has "neuropathy but have been told by VA doctors it isn't service connected because I don't have diabetes." A review of the file revealed that the Veteran has not filed a claim for service connection for neuropathy, meaning a C&P examination and etiology opinion have not been obtained concerning his neuropathy. The Board notes that early-onset peripheral neuropathy is one of the diseases presumptively connected to herbicide agent exposure. See 38 C.F.R. § 3.309(e). While the Board cannot at this time make any findings or conclusions concerning whether the Veteran's neuropathy is service connected, the Board makes this point should the Veteran wish to pursue a claim of service connection for neuropathy. The Board further emphasizes that it is possible for a disability to be service connected on a direct basis without it being one of the diseases considered by regulation to be presumptively connected. If the Veteran would like to pursue a claim of service connection for neuropathy, he may do so by completing and submitting a VA Form 21-526EZ and he is encouraged to work with his representative in this regard. The Board also notes that the Veteran initially limited his request for an increased evaluation to 30 percent, but after raising the issue of entitlement to a TDIU at the hearing, the claim scope is broadened to encompass any increased rating, including a TDIU. See Tr. 2, 7. 1. Entitlement to a 50 percent rating, but no higher, for service-connected unspecified depressive disorder is granted from June 22, 2016. The Veteran asserts his depressive disorder warrants an increased evaluation. See February 2021 Hearing Transcript; December 2020 VA Form 21-526EZ; June 2017 Notice of Disagreement. Specifically, in a November 2016 Correspondence, the Veteran asserted his symptomatology warrants a rating of 50 percent. The Board agrees. The Veteran is in receipt of a 10 percent rating for unspecified depressive disorder from March 18, 2015, and a 30 percent rating from December 11, 2020. The period on appeal is from November 28, 2016, the date of the Veteran's increased rating claim, plus the one-year lookback period. See November 2016 VA Form 21-526b, Veteran's Supplemental Claim for Compensation. The Veteran's unspecified depressive disorder is rated under DC 9435, 38 C.F.R. § 4.130, the General Rating Formula for Mental Disorders. Under DC 9435, a 10 percent rating is warranted where a psychiatric disorder is manifested by 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 medication. A 30 percent rating is warranted where a psychiatric disorder is manifested by 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). A 50 percent rating is warranted where a psychiatric disorder is manifested by occupational and social impairment with reduced reliability and productivity, due to 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where PTSD produces 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); and inability to establish and maintain effective relationships. A 100 percent rating is warranted if 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 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. The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the Federal Circuit stated 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." The Federal Circuit further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. Thus, "[a]lthough the veteran's symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Id. at 118. As such, the Board will consider both the Veteran's specific symptomatology as well as the occupational and social impairment described in the general rating formula to determine whether an increased evaluation is warranted. A June 22, 2016 VA mental health note, dated within the one-year lookback period, indicates the Veteran's depressive disorder was productive of frustration, fair level of energy, occasional panic attacks, irritability, proclivity to argue, sleep problems, nightmares 1-2 times per month, and mildly constricted affect. The Veteran reported that he avoided crowded places, and was easily startled by loud noises, A September 2016 VA mental health note indicates the Veteran's depressive disorder was productive of frustration, depressed mood, limited interest in things, lack of motivation to exercise, tearfulness, anxiety, tension throughout the day, occasional panic attacks that can be overwhelming, avoiding crowded places, bemoaning easily startled by loud noises, proclivity to argue, irritability, sleep problems, nightmares 1-2 times per month, and mildly constricted affect. A January 2017 C&P psychiatric examination report indicates that the Veteran's symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner indicated the only symptom that actively applied to his diagnosis was depressed mood. A January 2017 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, depressed mood, low energy, frustration, avoidance and procrastination, lack of motivation to exercise, tearfulness, anxiety, irritability, tension throughout the day, occasional panic attacks that can be overwhelming, avoiding crowded places, easily startled by loud noises, proclivity to argue, sleep problems, nightmares 1-2 times per month, and mildly constricted affect. An October 2017 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, neglecting chores, low energy, anxiety, occasional panic attacks, avoiding crowded places, becoming easily startled by loud noises, proclivity to argue, poor focus and concentration, memory problems, sleep problems, nightmares 1-2 times per month, and mildly constricted affect. A January 2018 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, limited interest in things, being mostly withdrawn, tearfulness, low energy, anxiety, occasional panic attacks, avoiding crowded places, becoming easily startled by loud noises, anger, proclivity to argue, poor focus and concentration, memory problems, sleep problems, nightmares 1-2 times per month, and mildly constricted affect. An August 2018 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, low energy, anxiety, panic attacks 1-2 times per week, avoiding crowded places, becoming easily startled by loud noises, tearfulness, anger, proclivity to argue, poor focus and concentration, memory problems, sleep problems, and mildly constricted affect. A November 2018 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, low energy, lack of interest in things, anxiety, panic attacks 1-2 times per week, avoiding crowded places, easily startled by loud noises, crying spells, anger, proclivity to argue, poor focus and concentration, memory problems, sleep problems, and mildly constricted affect. The November 2018 note also states that the Veteran "is struggling to work even part time, but is no longer able to maintain full time gainful employment." A March 2019 VA mental health note indicates the Veteran's depressive disorder was productive of sleep problems, worsening depressed mood, tearfulness, concentration problems, and anxiety. The March 2019 note also indicates the Veteran described his condition as "about the same as I always have" been. The note further indicates the Veteran has "suffered significantly" in terms of occupation due to his psychiatric symptoms. A September 2019 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, lack of interest in things, feeling bland, panic attacks, avoiding crowded places, easily startled by loud noises, tearfulness, anger, easily frustrated, proclivity to argue, sleep problems, and mildly constructed affect. The September 2019 note also states that the Veteran was struggling to work even part time. A February 2020 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, low energy, depressed periods, low motivation, procrastination, lack of interest in things, anxiety, panic attacks 1-2 times per week, avoiding crowded places, becoming easily startled by loud noises, tearfulness, anger, becoming easily frustrated, proclivity to argue, sleep problems, and mildly constricted affect. An August 2020 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, depressed periods, being withdrawn, lack of interest in things, procrastination, low energy, panic attacks 1-2 times per week, becoming easily startled by loud noises, tearfulness, anger, becoming easily frustrated, proclivity to argue, avoiding people, sleep problems, and mildly constricted affect. A November 2020 VA mental health note indicates the Veteran's depressive disorder was productive of fluctuating mood, depressed periods, being withdrawn, lack of motivation, procrastination, low energy, panic attacks 1-2 times per week, becoming easily startled by loud noises, tearfulness, anger, becoming easily frustrated, proclivity to argue, avoiding people, sleep problems, and mildly constricted affect. A December 2020 C&P psychiatric examination indicates the Veteran's depressive disorder was productive of 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 December 2020 examiner indicated the Veteran's symptoms included depressed mood, depressed affect, diminished interest in things, fatigue, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, detachment from others, and feelings of worthlessness and hopelessness. The examiner further indicated that the Veteran reported his symptoms have been consistent over the last 3-4 years. At the February 2021 hearing, the Veteran testified that his depressive disorder symptoms have been consistent since 2015. See Tr. 6. In a November 2016 Correspondence, the Veteran described psychiatric symptoms of sleep impairment, avoiding people, memory problems, a short temperament, easily agitated, poor concentration, low energy, lack of motivation, anxiety, depressed mood, crying episodes, fatigue, and irritability. Based on the foregoing evidence, the Board finds that the Veteran's depressive disorder more closely approximated occupational and social impairment with reduced reliability and productivity since June 22, 2016, which is within the one-year lookback period of the Veteran's November 2016 claim. In this regard, the Board highlights that the VA mental health notes since June 22, 2016 have consistently noted a constricted affect, persistent anxiety, panic attacks that range from occasional to 1-2 times per week and that can be overwhelming, memory problems, lack of motivation, lack of interest in things, depressed mood, chronic sleep problems, anger, irritability, and avoidance of people. The Board notes that these symptoms more closely approximate the diagnostic criteria at the 50 percent level, which include flattened affect, panic attacks more than once a week, memory impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. See 38 C.F.R. § 4.130, DC 9435. The Board further observes that the Veteran has credibly reported that his symptoms have remained consistent throughout the appeal period. See Tr. 6; December 2020 C&P psychiatric examination; March 2019 VA mental health note. Additionally, the Board finds the January 2017 C&P psychiatric examination report, which notes much less severe symptomatology, to be less probative because it conflicts with the consistent findings of the VA mental health assessments discussed above as well as lay reports of the Veteran's symptoms. A rating in excess of 50 percent is not warranted at any point during the appeal period. The evidence does not show that the Veteran's depressive disorder has produced 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); and inability to establish and maintain effective relationships. In this regard, the Board observes that the VA mental health notes discussed in this decision indicate a lack of suicidal ideation throughout the appeal period. In addition, the VA mental health notes do not reflect near-continuous panic or depression, obsessional rituals, spatial disorientation, or speech that was intermittently illogical, obscure, or irrelevant. Moreover, the Veteran himself has not asserted that a rating in excess of 50 percent is warranted. In sum, the Board finds that the weight of the lay and medical evidence of record supports a disability rating of 50 percent, but no higher, for the Veteran's service-connected depressive disorder from June 22, 2016. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. At the February 2021 Board hearing, the Veteran raised the issue of unemployability as a result of his service-connected depressive disorder. See Tr. 4-12. The Veteran's representative indicated that he would submit a VA Form 21-8940 within two months of the hearing and that he did not need the case held open. See Tr. 8. However, a VA Form 21-8940 has not yet been associated with the claims file since the February 2021 hearing. Given this, and evidence that the Veteran's service-connected depressive disorder limits his ability to secure and follow substantially gainful employment, remand is warranted to obtain a VA Form 21-8940 from the Veteran and to refer the matter to the Director of Compensation Service for consideration of extraschedular consideration. Any outstanding VA and private treatment records should also be secured. This remaining matter is REMANDED for the following action: 1. Obtain updated VA treatment records. 2. With any necessary assistance from the Veteran, secure any relevant outstanding private treatment records. 3. Request that the Veteran complete and submit a VA Form 21-8940, Application for Increased Compensation Based on Unemployability. 4. Then, after taking any other development deemed necessary in response to directive (3) above, refer the matter to the Director of Compensation Service for consideration of extraschedular TDIU. The Director is asked to review the entire claims file, with attention specifically invited to the following evidence: (a.) Any additional evidence obtained in response to directive (3) above. (b.) The September 2019 VA mental health note stating the Veteran was struggling to work even part-time. (c.) The March 2019 VA mental health note stating the Veteran "suffered significantly" in terms of occupation from his psychiatric symptoms. (d.) The November 2018 VA mental health note stating that the Veteran was no longer able to work full-time. (e.) The November 2016 Correspondence in which the Veteran describes how his psychiatric symptoms have impacted his ability to work. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.