Citation Nr: 22014577 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 19-24 905 DATE: March 14, 2022 ORDER Entitlement to a 100 percent disability rating for major depressive disorder is granted. Entitlement to service connection for an anxiety disorder is denied. REMANDED Entitlement to service connection for a sleep disorder, including as secondary to service-connected major depressive disorder, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs in favor of finding that the Veteran's major depressive disorder symptoms more closely approximate total occupational and social impairment. 2. The evidence of record persuasively weighs against finding that the Veteran had a diagnosis of anxiety disorder, separate from his service-connected major depressive disorder, at any time during or approximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for a 100 percent disability rating for major depressive disorder have 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. 2. The criteria for service connection an anxiety disorder is not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to June 1978. Unfortunately, the Veteran died in August 2017. The appellant is the Veteran's surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2021, the appellant testified at a hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is associated with the claims file. Increased Rating Disability evaluations are determined by applying the criteria set forth in the Schedule for Rating Disabilities to the Veteran's current symptomatology. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). 1. Entitlement to a disability rating in excess of 70 percent for major depressive disorder The appellant contends that prior to his death, the Veteran was entitled to an increased rating for his service-connected major depressive disorder. The Veteran filed a claim for an increased rating in May 2016. He was in receipt of 70 percent rating under 38 C.F.R. § 4.130, Diagnostic Code 9434. 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). 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. The Board concludes that the Veteran's major depressive disorder did more nearly approximate the level of impairment required for a disability rating of 100 percent. During a June 2016 VA examination, the Veteran was described as having difficulties with his interpersonal relationships, and experiencing suicidal ideation and feelings of worthlessness. The Veteran reported that he had not worked within the previous five years because he "just didn't have it in me" to do so. Although the examiner noted the Veteran had several symptoms, including symptoms associated with a 70 percent rating (suicidal ideation, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships), he was not found to have any symptoms associated with a 100 percent rating. However, during the Board hearing, the appellant's testimony regarding the Veteran's major depressive disorder indicates his condition was more severe. The appellant reported that the Veteran experienced auditory and visual hallucinations on multiple occasions. She recalled that he spoke to himself, and would ask her if she could see things that he hallucinated. Additionally, she indicated he engaged in grossly inappropriate behavior by touching his private area in front of her and others. The appellant also stated there were moments she feared the Veteran may harm himself or others. She testified that when she took away his gun and pocketknife, he became angry and resorted to hitting himself. The Board finds that, after affording the appellant the benefit of the doubt, the Veteran's major depressive disorder symptoms more closely approximated a 100 percent rating throughout the period on appeal. Thus, a 100 percent rating for service-connected major depressive disorder is granted. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran had a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. 2. Entitlement to service connection for an anxiety disorder Prior to his death, the Veteran sought service connection for anxiety disorder, separate from his service-connected major depressive disorder. The Board notes, however, that during the Board hearing, the appellant's representative indicated that the Veteran was not clinically diagnosed with anxiety disorder and that it was a symptom of his major depressive disorder. The Board concludes that the Veteran did not have a current diagnosis of anxiety disorder and did not have one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran was afforded VA examinations in June 2012, October 2013, and June 2016. At each of these examinations, the Veteran was not diagnosed with an anxiety disorder. On the October 2013 VA examination report, anxiety was listed as a symptom of the Veteran's major depressive disorder. VA treatment notes also indicate that, at times, the Veteran was noted to experience anxiety, but was not actually diagnosed with an anxiety disorder. The Board notes that anxiety is listed as a symptom in the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. There is no indication that the Veteran's anxiety was a separate disorder. The Board finds that his anxiety was a symptom of his service-connected major depressive disorder. Thus, the Veteran was already compensated for his anxiety as part of the rating for his service-connected major depressive disorder. See also 38 C.F.R. § 4.14. The Board acknowledges that the Veteran believed he was entitled to service connection for a separate anxiety disorder. Although the Veteran was competent to report his observation of symptoms, he was not able to provide a diagnosis in this case. The issue is medically complex as it requires specialized medical education and knowledge of specific diagnostic criteria and the relationships between multiple psychological diagnoses. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the competent medical evidence and finds that anxiety was only a symptom of the Veteran's service-connected major depressive disorder. Accordingly, the Board finds that the weight of the evidence is against the Veteran's claim for an anxiety disorder, and the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for a sleep disorder, including as secondary to service-connected major depressive disorder, is remanded. The Veteran also believed he was entitled to service connection for a sleep disorder. The RO denied service connection, finding that the Veteran did not have a diagnosis for a sleep disorder and that his sleep impairment was a symptom of his service-connected major depressive disorder. A VA medical opinion was not obtained. VA treatment notes show that the Veteran reported for an overnight sleep study in August 2016, and the notes state that the repot of the study would follow. However, it does not appear the results of the sleep study was ever added to the claims file. The Veteran passed away in August 2017, but the most recent VA medical records in the claims file are not dated beyond July 2016. Thus, remand is required to obtain any outstanding medical records, and to request a VA medical opinion. The matter is REMANDED for the following action: 1. Associate any outstanding VA medical records to the claims file, including a VA sleep study report. 2. If the sleep study report shows the Veteran was diagnosed with a sleep disorder, then provide the claims file and a copy of this remand to an appropriate examiner, who must note that the file was reviewed. The examiner is asked to respond to the following: (a.) State whether the Veteran's sleep disorder is at least as likely as not related to active service. (Continued on the next page) (b.) State whether the Veteran's sleep disorder is at least as likely as not proximately due to service-connected major depressive disorder. (c.) State whether the Veteran's sleep disorder is at least as likely as not aggravated beyond its natural progression by service-connected major depressive disorder. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Miller, 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.