Citation Nr: 21040312 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-42 509 DATE: July 3, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for other specified depressive disorder is denied. REMANDED Entitlement to service connection for a left foot disability, to include as secondary to service-connected disabilities, is remanded. FINDING OF FACT The severity, frequency, and duration of the Veteran's symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for other specified 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 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1988 to May 1992, with additional Reserve service. This matter comes before the Board of Veterans' Appeals (Board) on appeal of August 2014 and August 2016 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the Veteran's claims for additional development. The case is once again before the Board. Entitlement to an initial evaluation in excess of 30 percent for other specified depressive disorder is denied. The Veteran contends that his symptoms are more severe than a 30 percent rating. He submitted an August 2015 disability benefits questionnaire (DBQ) by Dr. H.H.-G. (initials used to protect privacy), a private psychologist. Dr. H.H.-G. found that his symptoms produce occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, which would warrant a 70 percent rating. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 50 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 50 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 30 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 30 percent rating. 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 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. 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 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. VA and private treatment records, the January 2016 VA examination, and the Veteran's lay statements show that the Veteran's other specified depressive disorder was manifested by symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment), and symptoms associated with a 50 percent rating (disturbances of motivation and mood). He also had symptoms that are not listed with a specific rating, such as low energy, fatigability, irritability, lack of concentration, social avoidance, and anhedonia. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 30 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 50 percent rating. See 38 C.F.R. § 4.126. The Veteran reported that these symptoms were not present daily, but would increase in severity with flare-ups in pain, particularly in the right lower extremity. Further, lack of energy, fatigability, irritability, social avoidance and anhedonia are similar to depressed mood and anxiety, which are contemplated by the assigned 30 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 30 percent rating. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. Mental status examinations in VA treatment records and the January 2016 VA examination indicate that the Veteran consistently was neat and clean in his appearance; his attitude was characterized as friendly and cooperative; he was alert and oriented to person, place and time; he denied suicidal or homicidal ideation; he denied any audio or visual hallucinations; he exhibited normal speech; he had linear thought process and normal thought content; his judgment and insight were within normal limits; his mood was consistently described as euthymic; and affect was congruent with mood. There was no evidence of psychosis. On occasion, his mood was reported as dysthymic due to increased pain (see, e.g., May-June 2015 VA treatment records); however, the mental status examinations were otherwise within normal limits. During the January 2016 VA examination, the Veteran reported that he is divorced and has a girlfriend with whom he resides. He has children from prior relationships and indicated that they get along well. He has a shared custody arrangement for the two younger girls who were ages 16 and 10 at the time of the examination. The Veteran reported that he has 10-15 close friends. He is unable to hunt anymore because of chronic pain; however, he enjoys spending time with his children and attending their school activities and sporting events. He told the examiner that he is active in the Masons and attends church regularly. He did not report any impairment in activities of daily living due to his psychiatric disability. See January 2016 VA examination report. The Veteran has worked for the Indiana state police for the last 18 years and is currently an investigator in the Crime Scene Investigation (CSI) unit. He told the examiner that he is on call "24/7" and "loves his job." He is currently a sergeant in the CSI unit and plans to retire in 12 years at age 60. He reported that he gets along well with his co-workers and has had no job performance problems. Id. He had no history of mental health treatment until approximately two years earlier and currently has psychotherapy sessions with a VA mental health provider about every three months. He takes his psychotropic medications as prescribed. The examiner noted his current symptoms as depressed mood. The Veteran also reported lack of motivation and irritability due to chronic pain. He reported sleep problems, including frequent awakening, due to pain. His mental status examination was within normal limits. He was clean, neatly groomed, and appropriately dressed. His attitude was described as cooperative and attentive. Psychomotor activity was unremarkable. His speech was normal. His mood was stable and his affect was appropriate. His attention was within normal limits and he was oriented to person, time and place. Thought process was logical and coherent. There was no evidence of any thought dysfunction. He denied any panic attacks. He denied any suicidal or homicidal ideation. He denied any delusions or audio/visual hallucinations. There was no history of violent behavior. He had good impulse control and denied engaging in any reckless or impulsive behaviors. The examiner performed psychological testing (Beck Depression Inventory - Second Edition (BDI-II), and Minnesota Multiphasic Personality Inventory-2 Restructured Form (MMPI-2 RF)), which indicated mild depression. Id. While the Veteran did experience symptoms contemplated by a 50 percent ratingdisturbances of motivation and moodthe evidence overall does not demonstrate the level of impairment associated with a 50 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 30 percent rating. Further, the record shows that the Veteran was generally performing well at work. In fact, during the January 2016 VA examination, the Veteran reported that he "loves his job." Although he had to switch to a non-uniformed position with the Indiana state police, he reported that it was because he could no longer wear the equipment required as a patrol officer. See August 2015 DBQ. It was not due to his depressive disorder. More recent VA treatment records indicate that he continues to work at CSI for the Indiana state police and received his associate's degree in culinary arts in December 2020, graduating cum laude. See April 2020 VA treatment records; February 2021 Academic Transcripts and Grade Reports. While the record shows that the Veteran's depression is managed with medication, the Board notes that the plain language of the criteria for a 10 percent rating under the General Rating Formula for Mental Disorders specifically contemplates the effects of medication. Consequently, Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply, and the Board's evaluation of the Veteran's other specified depressive disorder may include the ameliorative effects of medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). The Board notes that the Veteran submitted an August 2015 DBQ from Dr. H.H.-G. She found symptoms including depressed mood, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including work or a work-like setting. A mental status examination indicated that concentration was variable and he complained of increased trouble with short-term memory. He stated that he struggles remembering basic information. Speech flow was normal, although he was brief with information offered. Mood was described as anxious and nervous, and affect was restricted. The Veteran reported feeling anxious and depressed. Dr. H.H.-G. noted that he was vague with response, suspicious, and seemed "rather paranoid" when speaking with her. See August 2015 DBQ. In the attached psychological assessment, Dr. H.H.-G. indicated that the Veteran's physical problems have caused him to no longer be able to engage in hobbies such as exercise, fishing and playing with his children. The Veteran endorsed near-continuous depression and anxiety and debilitating depression. See August 2015 psychological assessment. In cases where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (holding that the credibility and weight to be attached to medical opinions is within the province of the adjudicators). The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings. See Sklar v. Brown, 5 Vet. App. 140 (1993). As long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995). Dr. H.H.-G.'s findings are inconsistent with the other evidence of record, including the VA treatment records, the VA examination report, and the Veteran's own statements to mental health treatment providers. The severe, debilitating symptomatology described in Dr. H.H.-G.'s report is simply not found anywhere else in the record. Certainly, there is no evidence of near-continuous panic or depression affecting the ability to function independently, appropriately or effectively; suspiciousness or paranoia; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work-like setting; or short-term memory problems. In fact, as set forth above, except for some relatively mild symptoms including lack of motivation, low energy, irritability, lack of concentration, dysthymic mood, social avoidance, etc., which the Veteran has stated ebb and flow along with his pain level, the record as a whole shows that he is functioning satisfactorily. Dr. H.H.-G.'s statement that he is unable to engage in hobbies such as fishing or spending time with his children is directly contradicted by the Veteran's own statements to VA psychologists. See, e.g., VA treatment records dated June 2014 (reports lack of motivation due to pain in his right leg, describes depression as 5/10); May 2015 (reports he wants to work on talking with his neighbors as a pleasant activity to help distract from his pain, also is setting a new goal to bike up the hill to VAMC on appointment days); June 2015 (states he runs/walks every other day and is making progress on his beekeeping hobby; also continues to fish and spend time with his neighbors); June 2015 (exercises regularly, rides his bicycle, visits with neighbors and continues to grow his hives of honeybees); July 2015 (reports increased pain due to running a 10-mile race over the weekend, states it was difficult but he had a lot of fun); July 2015 (continues to walk and bike, spends time with his neighbors, uses relaxation techniques); October 2015 (doing well with his current medications and denies depression or anxiety); April 2016 (reports he is doing well with current medication regimen and he and his family have plans to go to Disney World over the summer); July 2016 (denies depression or anxiety and reports that he and his family had a good time at Disney World); November 2016 (denies depression or anxiety, reports his sleep and appetite are good and he has returned to school to study culinary sciences); January 2017 (reports he is doing well except for ongoing pain and is starting his second semester in culinary school); May 2018 (continues to do well with his current medications, denies depression currently, states that he enjoys culinary school and loves cooking; looking forward to retirement from the state police in about five years); July 2020 (reports some irritability and angry outbursts but mental status examination is normal). Dr. H.H.-G.'s characterization of the Veteran's depression as completely debilitating is not supported by the overall record. As such, the Board assigns her report little probative weight. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 50 percent rating. The criteria for a 50 percent or higher rating are not met and the appeal must be denied. REASONS FOR REMAND Entitlement to service connection for a left foot disability, to include as secondary to service-connected disabilities, is remanded. The Veteran's claim for service connection for a left foot disability was remanded for a VA examination in February 2019. A VA examination was performed in February 2020. The examiner diagnosed bilateral plantar fasciitis and noted the complaints of sharp pain in the foot, aching and tingling toes. The Veteran reported difficulty kneeling, standing, loss of stability, loss of sensation, and loss of activity. He was taking ibuprofen for pain, 800 mg. twice a day. He reported a left foot injury from uneven weight distribution due to his service-connected right foot disability. See February 2020 VA examination report. The examiner opined that the Veteran's left foot condition was not caused or aggravated by his service-connected disabilities, including the right foot disability. She explained that he has been diagnosed with plantar fasciitis of the left foot and "Per medical research, plantar fasciitis can be caused by overcompensation due to excessive weight bearing." Id. The examiner's rationale seems inconsistent with her negative nexus opinion. Indeed, her statement that per the medical research, plantar fasciitis can be caused by overcompensation due to excessive weight bearing, appears to bolster the Veteran's argument that his service-connected right foot disability caused or aggravated the left foot condition due to shifting weight onto the left side. See also June 2008 VA examination report (noting that he is not claiming a left foot problem at that time but that he favors the right leg when he walks). The Board also notes that the examiner did not address the VA treatment records documenting a left heel spur, mild Achilles tendon tendinopathy and accessory soleus, in addition to the diagnosis of plantar fasciitis. See May 2015, December 2015 VA treatment records. The Board acknowledges that the Veteran submitted a February 2020 medical opinion letter from D.Z., RN, who stated that "I do believe that the issues with his left foot are stemming from overcompensation due to pain and nerve damage in his right lower extremity along with radicular low back pain." This opinion is conclusory and unsupported by medical rationale; therefore, it is inadequate for rating purposes. Therefore, the Board finds that an additional VA examination is necessary for proper adjudication of the Veteran's claim for service connection for a left foot disability. The matters are REMANDED for the following action: 1. The Veteran should be afforded a VA examination to determine the nature and etiology of any left foot disability that may be present. The examiner should state whether it is at least as likely as not that the Veteran has a current left foot disability that is causally or etiologically related to his military service. The examiner should also opine as to whether it is at least as likely as not that the Veteran has a current left foot disability that was caused by or aggravated by his service-connected disabilities, including his service-connected right foot disability. In rendering his or her opinion, the examiner should address both the causation and aggravation questions in his or her rationale. In other words, even if the Veteran's service-connected disabilities did not cause his current left foot disability, the examiner should still address whether his service-connected disabilities could have worsened his left foot disability. The examiner should specifically address the Veteran's contention that overcompensating for his service-connected right foot disability by shifting extra weight onto his left side has caused or aggravated his left foot disability. The examiner should also consider the February 2020 medical opinion letter submitted on the Veteran's behalf by D.Z., RN, of French Lick Family Medicine. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote, 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.