Citation Nr: 21026919 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 16-19 414 DATE: May 4, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for major depressive disorder with anxious distress is denied. Entitlement to an effective date before June 2, 2011 for the grant of service connection for major depressive disorder with anxious distress, to include clear and unmistakable error (CUE), is denied. REMANDED Entitlement to a disability rating in excess of 20 percent for a right shoulder disability is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected major depressive disorder with anxious distress or service-connected gastritis, is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. 2. The August 2007 rating decision that denied entitlement to service connection for bipolar disorder (claimed as a psychiatric condition) is final. 3. The Veteran filed a claim to reopen his previously denied service connection claim on June 2, 2011. 4. The Veteran has not identified an error of fact or law in the October 1999 rating decision denying service connection for mild dysthymic disorder that compels a conclusion, to which reasonable minds could not differ, that the results would have been manifestly different had the error not been made. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for major depressive disorder with anxious distress have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9434 (2019). 2. The criteria for an effective date before June 2, 2011, for the award of service connection for major depressive disorder with anxious distress have not been met. 38 U.S.C. §§ 5107, 5110 (2018); 38 C.F.R. §§ 3.102, 3.156, 3.400 (2019). 3. The criteria for clear and unmistakable error in the October 1999 rating decision have not been met. 38 U.S.C. § 5109A (2018); 38 C.F.R. § 3.105 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1992 to September 1992 and December 1994 to November 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a February 2012, October 2013, and April 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In August 2019, the Board remanded the Veteran's claim for additional development. The case is once again before the Board. 1. Entitlement to an initial rating in excess of 70 percent for major depressive disorder with anxious distress is denied. The Veteran's mental disorder is rated pursuant to DC 9434, which directs the Board to apply the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130. 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). Then, the Board must assess the severity, frequency, and duration of all associated symptoms, quantify the level of occupational and social impairment caused by those symptoms, and assign an evaluation that most closely approximates that level of occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The General Formula outlines six disability levels from zero to 100 percent, each defined using a similar format. The four that are relevant to this appeal are reproduced below. 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 of minimal personal hygiene); disorientation to time or place memory loss for names of close relatives, own occupation, or own name cause total occupational and social impairment. Evaluation under the General Formula is "symptom-driven," meaning that "symptom[s] should be the fact finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio, 713 F.3d at 116-17. As such, the Board will begin by reviewing the Veteran's symptoms during the appeal period keeping in mind that the Veteran is competent to report his experienced symptoms, such as depressed mood, anxiety, and the like. See 38 C.F.R. § 3.159(a)(2). During the appeal period, the Veteran reported to two mental health examinations (July 2013 and June 2018) and submitted two private posttraumatic stress disorder (PTSD) examination reports prepared by Dr. Green and Dr. Carter respectively. That evidence along with the Veteran's medical records and lay statements show that his mental disorder is manifested by most of the symptoms associated with a 30 percent rating (depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, and chronic sleep impairment) and some symptoms associated with a 50 percent rating (flattened affect, impaired judgment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships). He also presents with most of the symptoms associated with a 70 percent rating (suicidal ideation, obsessional rituals which interference with routine activities, near-continuous panic or depression affecting the ability to function, impaired impulse control, difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships) and one symptom associated with a 100 percent rating (persistent danger of hurting self or others). Review of the record also shows that he endorsed symptoms not listed with a specific rating, such as lack of pleasure, low energy, hopelessness, isolation, crying spells, and difficulty concentrating. The Veteran's unlisted symptoms of lack of pleasure, low energy, hopelessness, and isolation are similar to depressed mood and chronic sleep impairment, which are contemplated by the 30 percent rating. His other unlisted symptoms of difficulty concentrating and crying spells are like impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks) and disturbances of motivation and moodsymptoms associated with a 50 percent rating. In addition to the Veteran's service-connected major depressive disorder, the Veteran's private doctors diagnosed the Veteran with two nonservice-connected mental disorders: posttraumatic stress disorder (PTSD) and an other specified trauma and stressor-related disorder. Dr. Green attributed the Veteran's avoidance behaviors, intrusive memories, and hyperarousal to his nonservice-connected mental disorders. And Dr. Carter did the same for his hypervigilance. Accordingly, the Board will not consider those unlisted symptoms when rating the Veteran's mental disorder. After considering the evidence of record, the Board finds the severity, frequency, and duration of the Veteran's listed and unlisted symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequency, and shorter in duration than those contemplated by a 100 percent rating. Of all the symptoms associated with his mental disorder, the Veteran experiences only one associated with a 100 percent ratingpersistent danger of hurting self or others. All his other symptoms are associated with a 70 percent rating or below. Moving on to the level of social and occupational impairment caused by the Veteran's symptoms, he is currently unemployed. He has been in receipt of a total disability rating based on individual unemployability (TDIU) for his mental disorder since March 2016. Before then, he had "chronic problems with employment" with "too many jobs to list." He'd work for a few months before attendance or interpersonal problems caught up with him, and then he'd move on to another job. Writing in August 2016, Dr. Carter estimated he had more than 30 jobs in the past 20 years. Difficulty in adapting to stressful circumstances (including work or a worklike setting), impaired impulse control (such as unprovoked irritability with periods of violence) and difficulty establishing and maintaining effective work and social relationships were consistently found to be among his symptoms by his doctors and the examiners. Inability to establish and maintain effective relationships and near-continuous panic or depression affecting his ability to function independently, appropriately, and effectively were too. Socially, the Veteran was married but separated at the time of the last examination in June 2018. He explained that they separated because his spouse had difficulty adjusting to his mental health problems. He described his relationship with his immediate family as follows: mother ("estranged"), father ("strained but improved"), and child ("estranged"). He also mentioned that he had contact with his aunt once a month or every few months and said she was a surrogate mother. Outside of his family, he reported having close friends but denied group memberships. He's tried to be more active socially but ends up spending most of his free time at home. Since the last examination in July 2013, the Veteran stated his social activity and relationships have declined. Overall, the examiners summarized the Veteran's occupational and social impairment level as "most areas," while the Veteran's private doctors thought it best characterized as "total." Whether the Veteran's psychiatric symptoms impaired the Veteran's social and occupational functioning in "most areas" or "total[ly]" is an adjudicative question. 38 C.F.R. § 4.126(a). There's no denying that the Veteran experiences deficiencies with work and family relations because of his psychiatric symptoms. His work history speaks for itself. And he's currently separated from his spouse and estranged from his mother and child. But in other areas, the evidence demonstrates that he was consistently alert and oriented to person, place, and time with logical, coherent, and goal-directed thought processes, free of persistent delusions or hallucinations, often well-groomed and appropriately dressed with good hygiene, and intact memory. Although the Veteran did experience a symptom contemplated by a 100 percent ratingpersistent danger of hurting self or othersthe evidence does not demonstrate the level of impairment associated with a 100 percent rating. The Veteran's other remaining symptoms are either contemplated by or more consistent with a 70 percent rating. As such, the Board finds the Veteran's overall level of impairment more closely approximates a 70 percent disability rating throughout the appeal period and total social and occupational impairment is not demonstrated. Accordingly, a disability rating higher than 70 percent is denied. 2. Entitlement to an effective date before June 2, 2011 for the grant of service connection for major depressive disorder with anxious distress, to include clear and unmistakable error (CUE), is denied. Generally, a final rating decision may not be reversed or revised absent clear and unmistakable error (CUE). This happens when the following conditions are met. First, either (1) the correct facts in the record were not before the adjudicator, or (2) the statutory or regulatory provisions in existence at the time were incorrectly applied. Russell v. Principi, 3 Vet. App. 310, 313 (1992) (en banc). Second, the error is "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated." Id. Third, the error must have "manifestly changed the outcome" of the decision. Id. It is not easy to establish CUE in a final decision; it is "a very rare and specific kind of 'error' . . . of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error." Fugo v. Brown, 6 Vet. App. 40, 43 (1993). "[I]f it is not absolutely clear that a different result would have ensued," then the error is not clear and unmistakable. Id. at 44. When raising a CUE claim, the Veteran "must provide some degree of specificity as to what the alleged error is, and unless it is the kind of error, that if true, would be CUE on its face, 'persuasive reasons must be given as to why the result would have been manifestly different but for the applied error." Eddy v. Brown, 9 Vet. App. 52, 57 (1996). Here, the Veteran faults VA for failing to obtain a medical opinion on whether his mental disorder was related to his service or his service-connected shoulder disability. Once the examiner diagnosed the Veteran with mild dysthymic disorder, he says, the RO should have followed up with a nexus opinion request. Although there are regulations and caselaw governing when VA must obtain a medical opinion or examination, the Veteran's argument is that VA breached its duty to assist by failing to obtain a medical opinion. This is a failure to comply with the statutory duty to assist a claimant and a duty to assist error cannot constitute CUE by law. Cook v. Principi, 318 F.3d 1334, 1344-47 (Fed. Cir. 2002). The Veteran also contends that the RO failed to adjudicate his service connection claim. "In deciding whether there was CUE in a final VA decision based upon an allegation that VA failed to recognize an earlier claim, the . . . Board should determine whether, construing the pleadings at issue in the veteran's favor, it is obvious or undebatable that there was an error in the decision and that the error clearly affected the outcome." VAOPGCPREC 4-2004 (May 28, 2004). In April 1998, the Veteran initially filed a formal claim, contending his "anger" and "anxiety" were service-connected and referred to his service treatment records when asked about treatment during service. He failed to report to his examination and keep his mailing address current. As a result, the RO disallowed his claim. In April 1999, the Veteran filed another claim, contending that his depression, irritability, and short temper were "caused by what [he] went through during [his] military service." Phrased plainly, the Veteran expressly raised a direct service connection theory of entitlement. Equally clear is the fact that the RO adjudicated this claim. In the October 1999 rating decision, the second sentence of the relevant part reads: "[s]ervice connection for dysthymic disorder, mild is denied since this condition neither occurred in nor was caused by service." The RO reviewed the Veteran's service treatment records (STRs) but found them silent for complaint of or treatment for a mental disorder. Consistent with this, the July 1999 examiner found no history of psychiatric treatment. Additionally, the Veteran affirmatively denied depression or excessive worry at exit and the military examiner found the Veteran psychiatrically normal. Although the examiner diagnosed the Veteran with mild dysthymic disorder, he did not say one way or another whether it was connected to the Veteran's service. Other than his contention that the RO failed to adjudicate his direct service connection claim, the Veteran does not point to a specific error of fact or law with the RO's October 1999 rating decision, and the Board discerns none. Accordingly, the Board finds no clear and unmistakable error with the RO's decision on direct service connection. Finally, the Veteran suggests that the record reasonably raised secondary service connection, and the RO failed to adjudicate it. There is no indication in the claim-stating document that the Veteran expressly raised secondary service connection. So, for the RO to be obligated to consider the theory, it must have been raised by the record. For a secondary service-connection claim to be reasonably raised, the information obtained during the processing of the claim must reasonably suggest that the cause of a condition is a disease or other disability associated with service. DeLisio v. Shinseki, 25 Vet. App. 45, 54 (2011). Failure to consider a claim reasonably raised by the record is properly challenged through a CUE motion. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). The Veteran, through counsel, identifies the July 1999 mental health examination as "reasonably suggest[ing]" that the cause of the Veteran's mental disorder is his service-connected shoulder disability. At the examination, the Veteran reported re-injuring his shoulder during service and being harassed for it. He eventually separated because of his shoulder injury. He stated that he started feeling depressed during the discharge process and that he felt betrayed. He stated that the "anticipation of being separated from service was probably part of the reason for his depression." As noted, the examiner diagnosed him with mild dysthymic disorder but did not comment one way or another on its cause. On its face, then, the examination report does not indicate that the Veteran's mental disorder is in any way related to his service-connected shoulder disability. Although the Veteran reported being harassed because of his shoulder, he reported to the examiner that his depression was related to the discharge process and feeling betrayed not because of his shoulder disability. At least in the record before it, the Board also notes that there is no other evidence at the time suggesting a relationship between the Veteran's service-connected shoulder disability and his mental disorder. Because the record does not contain clear evidence showing a connection between the Veteran's service-connected shoulder disability and his mental disorder, the Board finds that the record did not reasonably raise secondary service connection. As a result, the RO did not commit clear and unmistakable error by failing to adjudicate it. Having found no clear and unmistakable error, the Board will address whether an effective date before June 2, 2011, is warranted. Ordinarily, if a claim is finally denied and later reopened and granted based on the submission of new and material evidence, the effective date will be the date that the Veteran filed his claim to reopen. 38 C.F.R. § 3.400(r). Before March 2015, a "claim" could be either "a formal or informal communication." 38 C.F.R. § 3.1(p) (2014). A formal claim is one that has been filed in the form prescribed by the Secretary. Norris v. West, 12 Vet. App. 413, 416 (1999). An informal claim is "[a]ny communication or action, indicating an intent to apply for one or more benefits under the laws administered by [VA], from a claimant, [or] his or her duly authorized representative." 38 C.F.R. § 3.155(a); see also Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). Thus, in determining the appropriate effective date, the Board must identify the earliest nonfinal claim. In April 2007, the Veteran filed another informal service connection claim for a psychiatric condition. The following August, the RO denied his claim because there was no evidence "which tend[s] to 'link' or relate [the Veteran's mental disorder] to [his] active military service (or to any illness or injury therein)." The Veteran did not disagree with the decision and submitted no new evidence during the one-year appeal period. The Veteran continued to receive treatment within one year of the decision. However, in the April 2015 rating decision, the RO considered this evidence and decided that it was not new and material. Lang v. Wilkie, 971 F.3d 1348, 1354-55 (Fed. Cir. 2020); Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). Therefore, the May 2007 rating decision became final. Between the May 2007 rating decision and the Veteran's June 2011 supplemental claim, the Board discerns no relevant "formal or information communication[s]." Accordingly, the Board finds the earliest, nonfinal claim is June 2, 2011. However, there is an exception to overcoming finality when service department records are involved. By regulation, VA will reconsider a claim after a final decision if it receives "relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim." 38 C.F.R. § 3.156(c)(1). If an award is made based all or in part on the newly associated service records, the effective date is the date VA received the previously decided claim. Id. (c)(3). Here, the August 2007 rating decision listed service treatment records (STRs) from March 30, 1992, to November 30, 1997, as among the evidence considered. Consistent with this, the Veteran's service records are date -stamped "received" by VA on May 20, 1998, September 18, 1998, and April 20, 1999, before the initial October 1999 rating decision. As such, the Board finds that the Veteran's service records were associated with the claims file when VA decided the claim. To summarize, the Board makes the following findings: (1) the August 2007 rating decision is final, (2) the new and material evidence and service department records exceptions to finality do not apply, and (3) the earliest nonfinal claim is June 2, 2011. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for a right shoulder disability is remanded. In January 2020, the Veteran reported to a shoulder examination to determine the current nature and severity of his shoulder disability. However, the examiner did not complete the portion of the examination report for conditions or impairments of the humerus ("no response provided"). Because the examination report is incomplete, the Board cannot make a fully-informed decision and must return the examination for an addendum. 38 C.F.R. § 4.2. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected major depressive disorder with anxious distress or service-connected gastritis, is remanded. The Board is required to discuss a theory of entitlement raised by the Veteran or by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 553 (2008). In April 2012, the Veteran filed an informal service connection claim for sleep apnea "as a direct service-connected disability and possibly secondary to a mental disorder." In June 2018, he also claimed his sleep apnea as secondary to his service-connected gastritis. In support of his contention, he submitted three medical articles: two are on sleep apnea and mental disorders and the third is about sleep apnea and gastrointestinal (GI) tract conditions. In the last remand, the Board directed the examiner to opine whether the Veteran's sleep apnea is at least as likely as not related to his service. For whatever reason, the Board did not ask the examiner to opine on the Veteran's expressly raised theory of secondary service connection. Because the Veteran's medical evidence "indicates" that there "may" be a connection between his service-connected disabilities and his sleep apnea and there is otherwise no medical evidence addressing the issue, remand is necessary to obtain a medical opinion. 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Finally, as the case is being remanded for additional development, any outstanding VA treatment records should be associated with the claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (per curiam). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records and associate them with the claims file. 2. Then, arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was (A) caused or (B) aggravated beyond its normal progression by the Veteran's service-connected mental disorder. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. The examiner must address Dr. Carter's July 2018 medical opinion and the two supporting medical articles when discussing the relationship, if any, between the Veteran's sleep apnea and his service-connected mental disorder. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 3. Arrange for an appropriate healthcare provider to review the Veteran's claims file and provide an opinion whether it is at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea was (A) caused or (B) aggravated beyond its normal progression by the Veteran's service-connected gastritis. Aggravation means an increase in disabilityany additional impairment of earning capacityof the nonservice-connected disability. The examiner must address the Science Daily article ("Many Patients with Sleep Apnea Also Suffer from GI Tract Conditions") submitted in July 2018. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the diagnosed disability prior to aggravation by the service-connected disability. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. Return the Veteran's claims file to the January 2020 VA examiner and request that he complete the portion of the examination report for conditions or impairments of the humerus. If the examiner is not available, provide the Veteran's claims file to an appropriate healthcare provider. If the reviewing health care provider finds that physical examination or telehealth interview of the Veteran and/or diagnostic testing is necessary, such should be accomplished. 5. After undertaking any additional development deemed appropriate and giving the Veteran full opportunity to supplement the record, adjudicate the Veteran's pending claim in light of any additional evidence added to the record. If any benefit sought on appeal remains denied, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case and be afforded the applicable opportunity to respond before the record is returned to the Board for further review. M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Canedy, 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.