Citation Nr: 21027326 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-47 246 DATE: May 5, 2021 ORDER A 70 percent rating for major depressive disorder throughout the appeal period is granted. REMANDED Entitlement to a rating in excess of 70 percent for major depressive disorder is remanded. Entitlement to service connection for PTSD is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence demonstrates that throughout the appeal period, Veteran's major depressive disorder has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a 70 percent rating for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army National Guard from January 2004 to February 2004 and in the United States Army from February 2004 to June 2006, May 2007 to January 2008, and July 2008 to June 2011. The Board remanded these issues for additional development in July 2018 and October 2020. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Entitlement to a rating in excess of 50 percent prior to January 3, 2017 rating for major depressive disorder. The Veteran's major depressive disorder is currently rated at 50 percent from November 18, 2014 to January 3, 2017 and 70 percent thereafter under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when the evidence shows 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. A 70 percent rating is warranted 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 that 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 worklike setting); inability to establish and maintain effective relationships. 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. The symptoms listed in General Rating Formula for Mental Disorders 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. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West, 11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Veteran asserts that his major depressive disorder is more severe than the currently assigned rating and that he is entitled to a higher rating. In March 2014, the Veteran presented with depressed symptoms, irritability decreased energy, poor concentration, and suicidal ideation with a plan of cutting himself. See March 2014 Psychiatry Admission Note; see also April 2014 Integrated Discharge Summary for Treatment Continuity; April 2014 Social Work Note. The Veteran admitted self-harm ideations with plan of cutting himself with a knife. He reported sleeping poorly and feeling tired. He reported suicidal gestures that day and reported taking prescribed medication with the intention of ending his life. He denied intent to harm others. He denied hallucinations; manic or hypomanic episodes such as history of inflated self-esteem or ideas of grandiosity, denied decrease need of sleep being told that he is more talkative usual, racing thoughts, history of increase goal directed activity or excessive involvement in pleasurable activities. The Veteran reported episodes of anxiety and irritability when thinking of his multiple problems. See March 2014 Psychiatry Admissions Note. At the April 2015 VA examination, the examiner summarized the Veteran's impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The VA examiner noted the Veteran exhibited the following symptoms: depressed mood, anxiety, flattened affect and disturbances of motivation and mood. See April 2015 Initial PTSD DBQ. At the January 2018 VA examination, the Veteran reported passive suicidal ideation described as "feeling desperate" and thinking about "ending it up or blowing out from high blood pressure." See January 2018 Initial PTSD DBQ. The evidence demonstrates that the Veteran's psychiatric disabilities symptoms correspond to a 70 percent disability rating. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). The Court specified that VA must not require "more than thought or thoughts to establish the symptom of suicidal ideation," and may not require that the Veteran have "been hospitalized or treated on an inpatient basis" to establish suicidal ideation because that "imposes a higher standard than the criteria in the Diagnostic Code for mental disorders." Bankhead, 29 Vet App. at 20. Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a 70 percent disability rating for the Veteran's adjustment disorder with depressed major depressive disorder. The issue of entitlement to a disability rating in excess of 70 percent for major depressive disorder is addressed in the remand portion of the decision below. REASONS FOR REMAND 1. Entitlement to service connection for PTSD is remanded. The Veteran asserts that he is entitled to service connection for PTSD that he developed as a result of his experiences during service. See January 2016 NOD; see also March 2014 VA 21-4138, Statement in Support of Claim. The Board notes, that the April 2015 and January 2018 Initial PTSD VA examiners provided a negative nexus opinion because the Veteran's symptoms were insufficient for a diagnosis of PTSD. However, the Veteran has continued to receive treatment for his psychiatric disabilities and his treatment records show he has a current diagnosis of PTSD. See January 2019 Mental Health Note. The Board finds that a new medical opinion should be obtained addressing whether the Veteran has a diagnosis of PTSD. 2. Entitlement to a rating in excess of 70 percent for major depressive disorder. VA's duty to assist includes providing a thorough and contemporaneous medical examination, especially where it is necessary to determine the current level of a disability. The Veteran last received a VA examination for PTSD in January 2018. The Board finds that the Veteran's treatment records evidence worsening of his psychiatric disorder. Accordingly, the Board must afford the Veteran a contemporaneous examination to evaluate the nature, extent, and severity of his major depressive disorder. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (VA regulations specifically require the performance of a new medical examination when evidence indicates that there has been a material change in a disability). 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. Finally, because development on the remanded issues could significantly impact a decision on the issues of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the TDIU issue is required. Additionally, the Board notes that further development is needed to ascertain the Veteran's current level of education, special training, and previous work experience, as such is unclear and central to his claim because he has not completed and filed a VA Form 21-8940 (Application for Increased Compensation Based on Unemployability), which is necessary for VA to adjudicate this issue. In correspondence sent in January 2021, the RO asked the Veteran to complete and return an enclosed an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. To date, this form has not been received. The AOJ should provide Veteran with an additional opportunity to complete this form. The Veteran should be advised that absent a competed VA Form 21-8940, entitlement to TDIU may be denied if one is not submitted following this remand. See Jernigan v. Shinseki, 25 Vet. App. 220, 229-30 (2012). The matters are REMANDED for the following action: 1. Notify the Veteran that he may submit lay statements from himself and other individuals who have first-hand knowledge, and/or were contemporaneously informed of his psychiatric symptomsto include the nature of his symptoms and when they began. 2. Schedule the Veteran for a VA examination to determine the onset, nature, and etiology of his psychiatric disabilities. A diagnosis of PTSD must be ruled in or excluded. Based on a review of the file and the lay evidence regarding the onset of his psychiatric problems, the examiner should respond to the following: (a.) Identify all psychiatric disabilities found to be present. If the examiner finds that the Veteran does not have a diagnosis of PTSD, the reason for this finding should be explained. (b.) With respect to each diagnosed psychiatric disability, state whether it is at least as likely as not each condition had its onset in service or is related to service. (c.) Regarding the Veteran's service-connected major depressive disorder, determine the current nature, extent, and severity of his psychiatric disability. The examiner should give a reasoned explanation for all opinions provided. 3. Contact the Veteran and request that he complete and return a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Notify the Veteran that the failure to complete and submit this form may lead to the denial of this benefit. TRACIE N. WESNER Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.