Citation Nr: 21042094 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 12-06 337 DATE: July 12, 2021 ORDER Entitlement to an evaluation in excess of 50 percent for service-connected major depressive disorder (MDD). Entitlement to service connection for hyperthyroidism, to include as secondary to the service-connected MDD. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's depressive disorder symptoms did not more closely approximate occupational and social impairment, with deficiencies in most areas. 2. The preponderance of the evidence of record does not show that the Veteran's hyperthyroidism (thyroid disorder) is due to or aggravated by MDD. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 50 percent for major 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 9434-9411. 2. The criteria for entitlement to service connection for hyperthyroidism, claimed as secondary to service-connected MDD have not been met. 38 U.S.C. §§ 1110, 1112, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from November 1979 to September 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2010 and January 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. These matters were previously before the Board in October 2016 and February 2018 at which time they were remanded. In October 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the Veteran's claim file. 1. Entitlement to an evaluation in excess of 50 percent for MDD 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 Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 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. Psychiatric disorders are rated under the General Rating Formula for Mental Disorders which provides that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: 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 warranted 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 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); 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 name. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary consideration is a Veteran's symptoms and how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, at 442 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. According to October 2008 VA treatment records, the Veteran's mood vacillated due to her thyroid condition. She also reported increased stress due to her son having been in a motorcycle accident. January 2009 VA treatment records indicated that the Veteran was feeling fatigued, tremulous, and anxious. In an April 2010 correspondence the Veteran's friend stated that the Veteran's depression caused her to be unable to leave her bed most days or pursue gainful employment. November 2010 VA treatment records indicated that the Veteran's appearance, speech, thought processes, insight, and motor processes were within normal limits. Her attitude was calm, and her mood was dysphoric. She did not have any suicidal or homicidal ideation, and she did not report any delusions or hallucinations. November 2011 treatment records indicated the same. She continued to report issues with sleeping. The Veteran underwent a VA examination in May 2010. The Veteran reported having no mood, no energy, and had feelings of uselessness. She was cleanly dressed with unremarkable psychomotor activity, spontaneous speech, and a cooperative attitude. The Veteran was tearful with a depressed mood. Attention, orientation, and thought processes were intact though the Veteran reported having difficulty keeping her attention on tasks. The Veteran also reported chronic sleep impairment, but her memory was normal. The examiner noted that the Veteran did not have hallucinations, obsessive or ritualistic behavior, panic attacks, homicidal thoughts, or suicidal thoughts. She had good impulse control and did not exhibit violent behavior. The Veteran reported interacting with her sons, one friend from church, and a support group for divorced Catholics. The rest of her family was located in the Philippines. The examiner determined that the Veteran's depressive symptoms could reduce the Veteran's reliability and productivity and result in difficulty initiating and completing activities. The Veteran also reported that she was removed from the Vocational Rehabilitation program for missing courses. January 2016 VA treatment records noted that the Veteran was crying frequently, sleeping poorly, worrying excessively about her oldest son, and isolating. Subsequent January 2016 records indicated that the Veteran had chronic depressive episodes but no mania or irritable moods. In March 2016 VA records, the Veteran reported an improvement in sleep and mood. She continued to report improvements through April 2016. In June 2016, the Veteran stated that her moods were up and down, and she felt numb. In August 2016, the Veteran's mood was euthymic as she had returned to the Philippines to see her family. She stated that she felt loved, wanted, and needed. She saw all of her siblings and this made her realize that she was not alone. The Veteran noted that she was not crying as often. She still stated, however, that her younger son was distant from her. She reported being somewhat closer to her older son. September 2016 records noted that the Veteran felt 50 percent better than last year as her visit to her siblings helped her feel less alone. She also reported that her relationship with her older son was more stable. November 2016 records indicated that the Veteran was more depressed as of late due to back and tooth pain. She reported being busy with planning an annual Filipino gala and stated that she was going to the Philippines again in May 2017. The Veteran noted that she was attempting to reach out to friends when she became lonely. Further November 2016 records indicated that the Veteran spent a positive holiday with her family. A mental status examination noted that the Veteran was fully oriented, neatly groomed, and well-dressed, and with normal speech, memory, psychomotor activity, attention, and thought processes. There was no evidence of psychosis, and judgement, insight, and impulse control were within normal limits. The Veteran consistently denied any suicidal ideation throughout this period. The Veteran was provided with a hearing in October 2017. The Veteran stated that her depression had worsened since her diagnosis of hyperthyroidism in 2007. She also reported having passive suicidal ideation, though she functioned independently with the help of friends and the church. April 2017 VA treatment records noted that the Veteran's thyroid condition was affecting her depressive symptoms. November 2017 records noted that the Veteran had been tired as she was busy with activities in the Filipino community. The Veteran reported being more forgetful lately. She stated that she had left her stove on while performing several other tasks. In December 2017, the Veteran noted being depressed as her ex-husband had sold the shared family home without consulting her. She coped by distracting herself over the holidays with several activities and invitations to events which she attended with a positive attitude. The Veteran still reported increased depression in January 2018 as her relationships with her sons and ex-husband were strained. In February 2018, she noted that she was less depressed as she had been more active. She reported a trip to Las Vegas with her friends and some improvement in her relationship with her older son. In April 2018, the Veteran stated that she had been in a good mood as she had visited her son and daughter-in-law who was pregnant with the Veteran's first grandchild. The Veteran denied having suicidal ideation during every mental health status examination. The Veteran was provided with a mental health VA examination in February 2019. The examiner determined that the Veteran suffered from occupational and social impairment with reduced reliability and productivity. The Veteran denied suicide attempts or hospitalizations. She stated that she had experienced occasional suicidal thoughts but noted that she had none currently. Symptoms of depressed mood, anxiety, panic attacks weekly or less often, and chronic sleep impairment were observed. The examiner noted that the Veteran's scores on the Beck Depression Inventory and Beck Anxiety Inventory indicated that she had severe depression and anxiety. The Veteran's symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss are all included in the criteria for a 50 percent evaluation. The Veteran had appropriate hygiene throughout the appeal period, and was always articulate, well-oriented, and exhibited linear thought pattern. She also denied any delusions, hallucinations, or obsessions. The Veteran also continued to report a good relationship with her family members. Though she had family conflict with her sons and ex-husband, records indicated that she was improving her relationship with her older son. April 2018 records also noted that the Veteran had been happier as she had visited her younger son who was expecting his first child. VA medical records also seem to indicate that the Veteran has a relatively strong social support system. The Veteran reported feeling loved and supported by her family in the Philippines and the Veteran received support from her friends and her church community. She continued to attend trips throughout the appeal period. The Veteran also organized and attended events within the Filipino community. The Veteran largely exhibited that she was able to maintain meaningful relationships. Though the Veteran reported in the October 2017 hearing and the February 2019 VA examination that she had had passing thoughts of suicide, the VA treatment records from October 2008 through February 2018 indicated that the Veteran actively and consistently denied any suicidal or homicidal ideation. The Board also notes that the Veteran is unemployed; however, both the May 2010 and February 2019 VA examiners determined that the Veteran's mental health condition alone only resulted in reduced reliability and productivity. In summary, the evidence is insufficient to show that the Veteran has such symptoms as suicidal ideation with plan or intent, obsessional rituals, defects in speech, near-continuous panic or depression which affect her ability to function independently, appropriately, and effectively; impaired impulse control (other than as noted), spatial disorientation, neglect of personal appearance and hygiene, or difficulty in adapting to stressful circumstances, nor are there other psychiatric symptoms shown to have resulted in such impairment, such that a 70 percent rating is warranted. The Veteran's MDD symptoms were of the same type, frequency, duration, and nature as those associated with a 50 percent rating. The Veteran's symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances are all included in the criteria for a 50 percent evaluation. Although the Veteran reported some passive suicidal ideation during the appeal period, those symptoms in conjunction with the other MDD symptoms do not rise to a level of occupational and social impairment with deficiencies in most areas. In other words, the totality of her symptoms, including her past suicidal ideations, do not more nearly approximate the rating criteria and impairment contemplated by a 70 percent rating. Accordingly, an evaluation in excess of 50 percent is not warranted. Notably, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board's analysis. Moreover, the Board has explained why the Veteran's relevant symptoms do not merit a rating greater than the one assigned. A rating higher than 50 percent for MDD is not warranted. 2. Entitlement to service connection for hyperthyroidism, to include as secondary to the service connected MDD. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be granted on a secondary basis for disability which is proximately due to or the result of service-connected disease or injury, or for additional disability resulting from the aggravation of a nonservice-connected disability by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran alleges that her hyperthyroidism is caused or aggravated by her service-connected depression. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). According to the February 2019 VA examination, the Veteran was diagnosed with hyperthyroidism in 2007. Second, the Veteran meets the second element for secondary service connection as she is properly service connected for MDD. Third, the Board finds that the evidence of record does not support a finding that the hyperthyroidism is related to active service or to her service connected MDD. The Veteran was provided with a VA examination in February 2019. The examiner determined that the Veteran's hyperthyroidism was less likely than not related to her active duty service. The examiner noted that the Veteran's STRs were silent for diagnosis, treatment, or complaints of a hyperthyroid condition. The examiner found that the Veteran's medical records showed a diagnosis of Graves' disease with resulting hyperthyroidism in 2007. The examiner also noted that the Veteran's medical records showed the etiology of the Veteran's hyperthyroidism as her Graves' disease. The examiner explained that Graves' disease was an autoimmune disorder in which thyroid-stimulating hormones (TSH) antibodies stimulate growth of the thyroid gland leading to thyroid hormone release that results in hyperthyroidism. The examiner noted that Graves' disease is considered to be the most common cause of hyperthyroidism. The examiner then reiterated that the Veteran's hyperthyroidism was diagnosed 19 years following service, and therefore less likely than not related to service. The examiner then determined that the Veteran's hyperthyroidism was less likely than not caused or aggravated by her service-connected depression. The examiner listed several pieces of medical literature and stated that extensive peer-reviewed medical literature indicated that there was no significant medical evidence that depression caused or aggravated hyperthyroidism. Contrarily, the medical evidence showed that hyperthyroidism can lead to depression. The Board finds this opinion highly probative evidence as it is provided upon review of the relevant facts (to include lay statements of symptomatology that the Board found probative) and is supported by explanation. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). The examiner provided a thorough medical evidence for his opinion and provided an explanation as to the probable etiology of the Veteran's hyperthyroid condition being her diagnosed Graves' disease. The Board also notes that this opinion is supported by the medical evidence within the Veteran's file. In a May 2009 correspondence, a private endocrinologist stated that it was his opinion that the Veteran's depression was affected by her hyperthyroidism. The Veteran's VA treatment records also indicated that the Veteran's mood and depression fluctuated due to her hyperthyroid condition. A May 2017 VA record noted that the Veteran's hyperthyroid condition was a causative factor in her depression. As such, the evidence of record and VA opinion indicate that the Veteran's depression is aggravated by her hyperthyroidism, but it is unlikely that her hyperthyroidism is caused or aggravated by her depression. There is no competent opinion to the contrary. The Board appreciates the Veteran's sincere belief that her thyroid disorder had its onset inservice or is secondary to her service-connected MDD. However, she is not competent to provide an opinion as to the etiology of her thyroid disorder because she has not been shown to have the requisite medical expertise to provide such an opinion. For the reasons discussed above, the VA examiner's opinion is the most probative etiological evidence of record on the question of nexus. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board AK 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.