Citation Nr: 22017595 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 19-09 044A DATE: March 25, 2022 ORDER Entitlement to a rating in excess of 10 prior to February 13, 2017, and in excess of 30 percent from that date, for depressive disorder is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. FINDINGS OF FACT 1. Prior to February 13, 2017, the Veteran's depressive disorder was manifested by no more than is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. 2. From February13, 2017, the Veteran's depressive disorder has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks; occupational and social impairment with reduced reliability and productivity, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships are not shown. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 prior to February 13, 2017, and in excess of 30 percent from that date, for depressive disorder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 2000 to October 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a January 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 10 prior to February 13, 2017, and in excess of 30 percent from that date, for depressive disorder Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's psychiatric disorder, characterized as depressive disorder, is evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. A February 2011 rating decision initially assigned a 10 percent rating from October 2010. The Veteran filed his current claim for increase in April 2017. The January 2018 rating decision on appeal increased the rating to 30 percent from February 13, 2017. The current period on appeal extends one year prior to the date of the claim for increase. Thus, the Board will consider the rating from April 2016. Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent evaluation is warranted where there is 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent evaluation is warranted where there is 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; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where there is objective evidence demonstrating 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, or 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; and the inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation is warranted when there is 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 and place; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of symptoms, but the use of the term "such as" in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Evidence A March 2017 VA mental health note reported that the Veteran had been contacted to complete an initial mental health baseline assessment. The Veteran reported feeling down, sad, anxious, trouble sleeping and poor energy levels. He said he drove a tractor-trailer truck over the road and was only home one week a month. The Veteran denied any suicidal ideation and denied any plans or intentions to harm himself. He reported trouble falling and staying asleep. He reported drinking alcohol to help him sleep, noting he generally had two shots at night. He reported vague auditory hallucinations but denied any command hallucinations to harm himself. On an April 2017 mental health note, the Veteran reported that sleep problems had been impacting his work as a truck driver because he felt tired all day. The Veteran reported that his depression impacted social relationships because he withdrew from family and friends. He did have a significant other and described their relationship as "up and down". He noted that he liked driving a truck because it kept him away from other people. The Veteran reported that he had a 12 year old grandson who was very important to him. The Veteran reported that he exercised regularly in his truck. Other than driving the truck, he denied having any hobbies. On examination, the Veteran was alert, cooperative, oriented x 4 and verbal. Thought process was logical and linear with no evidence of delusions or hallucinations. Speech was clear and eye contact was appropriate. The Veteran denied current suicidal ideation, plan or intent. He endorsed having fleeting thoughts that he easily dismissed about harming specific others, but denied any intention to act on these thoughts. He did not want to incur consequences for acting on his thoughts. He denied access to firearms. His grandson was a protective factor. The examiner stated that the Veteran did not appear to be an imminent risk to harm self or others at this time and remained sustainable as an outpatient. On VA examination in December 2017, the examiner stated that the Veteran's depressive disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran reported that he was using his sister's home. He had had custody of his grandson who was now 12 and was now with his mother (the Veteran's daughter). The Veteran reported that he missed contact with his grandson who he had custody with since he was 5 years old. He also had an 8 year old daughter with his ex-wife. The Veteran was not able to have regular contact with her and this had caused him distress. The Veteran reported that he was last in a romantic relationship in 2013. He reported that he liked being in his truck, and he did not like being around others. He was close to his brother in Baltimore. He watched the news and sports when he was not driving. The Veteran reported that he walked walks when he could, and that he had sports equipment in his truck. The Veteran reported that he was an independent contractor, truck driver, and had been doing that for over three years. The Veteran reported that he sometimes had difficulty falling asleep, and was taking an over the counter sleep aid along with 1-2 shots of liquor in order to sleep (does this 4 nights/week). He stated that a "good night" was 4-6 hours of sleep. He stated that he drank coffee and smoked cigarettes to stay awake. He was socially isolative, noting that he stayed in his truck to avoid negative social interactions. The Veteran denied intent or plan to harm himself, however he stated that he has thought at times that it would not be a bad thing to die peacefully (i.e.: when he hears that someone has passed). He denied problems with cognition, noting that his memory and focus were good. He denied persistent anxiety outside of expected external stressors. He stated that if he thought about the loss of his parents, not being able to spend time with his daughters, and missing his grandson, he felt sad. He stated that if he did not think about this, he did not feel depressed. He reported that he ate when hungry, and had gained some weight over the last couple of years. He attributed this to driving a truck and not getting enough physical activity. The examiner noted the Veteran's symptoms as depressed mood and chronic sleep impairment. On examination, the Veteran was alert, fully oriented and cooperative. He was well groomed. His reported mood was fair, his affect was slightly dysphoric. Speech and thought content were within normal limits. Thought processes were logical and goal-directed. There was no evidence or report of delusions or hallucinations. Memory and attention appeared grossly intact. Insight and judgment were intact. The Veteran denied current suicidal or homicidal ideation. Analysis For the period on appeal prior to February 13, 2017, the evidence does not support a rating in excess of 10 percent. Specifically, there are no treatment records or other specific evidence addressing the Veteran's disability for the period from April 2016 to February 13, 2017. Thus, the Board finds no basis for assigning a higher rating for this period. For the period on appeal from February 13, 2017, a rating in excess of 30 percent is not warranted at any time. The December 2017 VA examiner characterized the Veteran's depressive disorder as resulting in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. This corresponds to the criteria for a 10 percent rating. The same examiner endorsed the Veteran having symptoms of depressed mood and chronic sleep impairment. These symptoms are contemplated by the current 30 percent rating. The Veteran has been shown to have a good relationship with his brother, and with his grandchild when he is able to see him. While he told the December 2017 examiner he had not had a romantic relationship since 2013, the April 2017 mental health note described his having a "significant other" at that time. The Veteran was noted to be working as a self-employed truck driver during the appeals period. While he noted that he liked driving because it allowed him to avoid interactions with others, the evidence does not demonstrate that his service-connected depressive disorder is productive of occupational impairment rising to the level of difficulty in establishing and maintaining effective work relationships. His memory and speech have been normal, and he has not manifested any anxiety or panic attacks. While the March 2017 phone intake interview referred to vague auditory hallucinations, the more thorough in-person December 2017 VA examination report found no evidence or report of delusions or hallucinations. In short, the evidence does not demonstrate 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; and difficulty in establishing and maintaining effective work and social relationships. In sum, for the reasons and bases expressed above, the Board concludes that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent prior to February 13, 2017, and in excess of 30 percent from that date, for depressive disorder. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the Veteran's service-connected disability warranted a rating higher than currently assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). There are no additional expressly or reasonably raised issues on the record. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran contends that he has sleep apnea that he believes is related to his service-connected depressive disorder. Sleep apnea was diagnosed by sleep study in May 2017. A VA examiner in December 2017 opined that the Veteran's sleep apnea was "less likely as not due or the result of" his service-connected depressive disorder. She noted that sleep apnea is "not caused by" a mental health disorder. An addendum opinion is needed to address aggravation. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). 2. Entitlement to a rating in excess of 20 percent for lumbosacral strain is remanded. On VA examination in December 2017, the Veteran reported flare-ups due to his service connected back disability. The examination report did not offer an opinion addressing the additional functional loss that the Veteran experienced during flare-ups. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). It is necessary that the Veteran be provided an additional VA examination addressing his lumbar spine disability. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain an addendum VA opinion regarding the claimed sleep apnea. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. After reviewing the claims file, the examiner should respond to the following: Is it at least as likely as not (50 percent probability or more) that the Veteran's current obstructive sleep apnea was aggravated (increased beyond the natural progression of the disability) by his service-connected depressive disorder? The examiner should note that in answering this question, two opinions are required: one for proximate causation and a second for aggravation. The examiner is further advised that secondary service connection does not require permanent worsening of the claimed secondary condition. Rather, it requires consideration of whether there has been any worsening, no matter how incremental, beyond the condition's natural progression. See Ward v. Wilkie, 31 Vet. App.233 (2019). In providing the above opinions, the examiner should consider the Veteran's complete and relevant medical history. A complete rationale for any opinion expressed must be provided. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected lower back disability. The examiner must review the claims file. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups or due to pain on use over time. The examiner must express any such functional impairment in terms of ranges of motion. The examiner is also asked to express a retrospective opinion that considers functional loss as reported at the December 2017 back examination, if at all possible. Specifically, the examiner is to consider the additional functional impairment that occurs during back flare-ups (as reported by the Veteran at the December 2017 examination) and state whether such functional loss would result in additional loss of range of motion. If so, this should be provided in degrees of motion. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). A rationale must be provided for all opinions rendered. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. G. Mazzucchelli, 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.