Citation Nr: 1753639 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 12-00 314A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent prior to July 8, 2004, in excess of 30 percent from July 8, 2004 to December 14, 2008, and in excess of 50 percent from December 14, 2008 to December 22, 2009 for recurrent major depression and bulimia nervosa. ATTORNEY FOR THE BOARD T. Carter, Counsel INTRODUCTION The Veteran served on active duty in the United States Navy from May 1987 to March 1999. This case comes before the Board of Veterans' Appeals (Board) on appeal from February 2004 and May 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. Amvets revoked its representation and withdrew as the Veteran's representative in March 2004. The record reflects that written notice was provided to the Veteran and the Board. She has not indicated that she desires another representative and demonstrated an intent to individually pursue her case. Thus, the Board will proceed under the assumption that she wishes to represent herself. In March 2017 the Board remanded the case for additional evidentiary development, and it has been returned to the Board for appellate review. Since the case has been returned, additional evidence relevant to the case has been obtained and associated with the record, which the Veteran waived initial Agency of Original Jurisdiction (AOJ) review in an August 2017 contact with VA, as noted in a VA Form 27-0820 (Report of General Information). As such, the Board may proceed with the case. There was substantial compliance with the March 2017 remand directives. The AOJ obtained VA treatment records dated from April 2000 to August 2001, January 2011 to February 2011, and February 2010 to April 2017. The Veteran was requested in an April 2017 letter to complete and return VA Forms 21-4142 and 21-4142 in order for VA to obtain her treatment records, to include from Dr. Manhar. In an August 2017 contact with VA, the Veteran reported she does not currently have any additional evidence to submit regarding her appeal. The case was readjudicated in a July 2017 Supplemental Statement of the Case. FINDINGS OF FACT 1. Prior to July 8, 2004, the Veteran's service-connected recurrent major depression and bulimia nervosa was not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to psychiatric symptomatology. 2. From July 8, 2004 to April 1, 2008, the Veteran's service-connected recurrent major depression and bulimia nervosa was manifested by occupational and social impairment with deficiencies in most areas due to psychiatric symptomatology. 3. From April 2, 2008 to December 22, 2009, the Veteran's service-connected recurrent major depression and bulimia nervosa was manifested by total occupational and social impairment due to psychiatric symptomatology. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to July 8, 2004 for recurrent major depression and bulimia nervosa have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for a rating of 70 percent for recurrent major depression and bulimia nervosa have been met from July 8, 2004 to April 1, 2008. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). 3. The criteria for a rating of 100 percent from April 2, 2008 to December 22, 2009 for recurrent major depression and bulimia nervosa have been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify & Assist The requirements of 38 U.S.C.A. §§ 5103 and 5103A have been met. VA's duty to notify was satisfied by February 2005 and March 2006 letters. 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim to include where warranted by law, and affording the Veteran VA examinations and VA medical opinions. 38 U.S.C.A. §§ 5103, 5103A. There is no evidence that additional records have yet to be requested. In sum, there is no evidence of any VA error in notifying or assisting her that reasonable affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Higher Ratings for Service-Connected Recurrent Major Depression and Bulimia Nervosa Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required 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. When entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected PTSD in this case, the level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). On November 20, 2003, the Veteran underwent a periodic VA examination for the service-connected recurrent major depression and bulimia nervosa. In a February 2004 VA rating decision, a rating in excess of 10 percent was denied. See 38 C.F.R. § 4.130, Diagnostic Code 9521-9434. Pursuant to a statement from the Veteran within one year regarding her service-connected psychiatric disability, the 10 percent disability rating was continued in a May 2005 VA rating decision. Id. During the course of the appeal, a 30 percent disability rating was assigned effective from July 8, 2004 in an October 2006 VA rating decision; a 50 percent disability rating was assigned effective from December 15, 2008 in a December 2009 VA rating decision; and a 100 percent disability rating was assigned effective from December 23, 2009 in a January 2010 VA rating decision. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Since the 10, 30, and 50 percent disability ratings are not the maximum ratings available prior to July 8, 2004, from July 8, 2004 to December 14, 2008, and from December 15, 2008 to December 22, 2009, the issue is listed on the title page accordingly. See AB v. Brown, 6 Vet. App. 35 (1993). As such, the Board considers whether a rating in excess of 10 percent from prior to July 8, 2004, in excess of 30 percent from July 8, 2004 to December 14, 2008, and in excess of 50 percent from December 15, 2008 to December 22, 2009 is warranted for recurrent major depression and bulimia nervosa in this case. Pursuant to the General Rating Formula for Mental Disorders, a rating of 10 percent is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress, or symptoms controlled by continuous medication. See 38 C.F.R. § 4.130, Diagnostic Code 9434. A rating of 30 percent is warranted for 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 rating of 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 per 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. Id. A rating of 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); or an inability to establish and maintain effective relationships. Id. A rating of 100 percent, the maximum available, 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; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The nomenclature employed in the portion of VA's rating schedule that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition, of the American Psychiatric Association (DSM-IV). See 38 C.F.R. § 4.130. The Board notes VA implemented usage of the DSM-5, effective August 4, 2014. As this case was initially certified to the Board in June 2016, the DSM-5 is for application in this case. According to the applicable rating criteria, when evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Rating in Excess of 10 Percent prior to July 8, 2004 On November 20, 2003, the Veteran underwent a periodic VA psychiatric examination through QTC Medical Services (QTC). The Veteran reported that after injuring her Achilles tendon in 1997 she gained close to 100 pounds and started feeling hopeless, helpless, feeling down, binging, purging, and having concentration, memory, and sleep problems. With regard to present psychiatric symptomatology, she noted much improvement and little to none of the previous symptoms previously noted. She described her current marriage as "going well" and current employment as a phone operator. Upon clinical evaluation, she was casually dressed, well groomed, maintained good eye contact and normal speech, fair insight and judgment, "okay" mood, euthymic affect, fully alert and oriented, and rambling thoughts. There were no findings of gross impairment in memory or cognition. A May 2004 VA treatment record noted the Veteran was alert and oriented. After review of the pertinent evidence of record, the Board finds the Veteran's service-connected recurrent major depression and bulimia nervosa was not manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to her psychiatric symptomatology. As discussed above, the Veteran's recurrent major depression and bulimia nervosa was manifested by depressed mood and continuous medication. Her overall psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate more severe occupational and social impairment at any time during the appeal period to warrant a higher rating. In fact, she demonstrated an ongoing relationship with her husband, euthymic affect, normal speech, no findings of gross impairment in memory or cognition, fair judgment, and maintained employment. As such, a rating in excess of 10 percent is not warranted from November 20, 2003 to July 7, 2004. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Rating in Excess of 30 Percent from July 8, 2004 to December 14, 2008 On July 8, 2004, a statement from the Veteran was obtained and associated with the record. She reported the pain from her shoulders had been devastating and depressing and she found herself having suicidal thoughts. At the March 2005 VA QTC psychiatric examination, the Veteran reported living with her husband, young son, and terminally-ill mother, feeling depressed, trouble controlling her weight, and not working for several years. She noted that her episodes of depression consisted of depressed mood, suicidal thoughts, difficulty concentrating, social isolation, difficulty with work performance, irritability, at home, and feelings of hopelessness. Throughout the years she had intermittent suicidal thoughts but no attempts to harm herself. Upon clinical evaluation, she demonstrated cooperation, was a reliable historian, depressed mood and affect, good abstracting ability, orientation in all spheres, good memory function, and fair insight and judgment. The Veteran also denied being actively suicidal. The examiner concluded the Veteran was capable of attending to her own activities of daily living and of following directions. Review of VA treatment records show that in June 2005, she presented a clearly depressed affect and reported gaining weight because of her inability to exercise secondary to job-related trauma to musculoskeletal disabilities. In July 2005, the Veteran underwent a mental health clinical intake assessment. She reported living with her husband and mother, difficulty with coping and anxiety, stopped taking psychiatric medication in 2001, sleep impairment, unmotivated to do anything or go anywhere, and denied suicidal and homicidal ideation. Upon clinical evaluation, she demonstrated orientation, withdrawn appearance, appropriate behavior, cooperation, depressed mood and affect, organized and goal-directed thoughts, relevant and coherent speech, good insight and judgment, okay memory, and no delusions or hallucinations. In September 2005, the Veteran reported her desire for a divorce and presented a depressed and anxious mood and affect. She was casually dressed, pleasant, cooperative, oriented, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, and no impairment of judgment, hallucinations, or delusions. In January 2006, the Veteran reported "having ups and downs." Again, she was casually dressed, pleasant, cooperative, oriented, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, and no impairment of judgment, hallucinations, or delusions. Approximately five days later, she reported minimal improvements in mood and affect. In the March 2006 notice of disagreement, the Veteran reported her major depression has become very severe and serious, she thought about dying almost on a daily basis, felt hopeless, and was less intimate with her husband. She noted losing her job as a school bus driver due to her mental and physical problems and gaining weight over a six-month period. In the November 2006 substantive appeal, VA Form 9, the Veteran reported things had gotten worse and she could not work or remember things day to day. Review of VA treatment records further show that in March 2006 the Veteran reported dissatisfaction with recent weight gain, family difficulties, and increased anxiety. In June 2006 she reiterated some depression related to her mother's illness and denied suicidal or homicidal ideation or plans. In November 2006, she reported continued depressed mood and affect, increased short-term memory problems, and a decrease in pleasurable activities. A February 2007 record noted the Veteran still married and living with her spouse. In March 2007 the Veteran requested grief counseling and noted improvements in her marital relations. Again, she was casually dressed, pleasant, cooperative, oriented, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, and no impairment of judgment, hallucinations, or delusions, as noted in records dated June 2006, December 2006, April 2007, and May 2007. In August 2007, the Veteran reported living with her husband and two children and thinking about death and taking her life daily; however, she had no intent or plan. Upon clinical evaluation she was neat and well groomed, oriented to time, person, place, tearful throughout interview, pleasant, cooperative, and demonstrated depressed mood, sad affect, relevant and coherent speech, organized and goal directed thoughts, good insight and judgment, and intact memory. There were no findings of homicidal ideations or plans, delusions, or hallucinations. In September 2007, the Veteran reported an increase in suicidal ideation since last visit and wanted to die to be with her mother, but no current suicidal intent or plan. Less than one week later, she denied suicidal and/or homicidal ideation, intent, or plan. On October 30, 2007, the Veteran reported intermittent anxiety and depressive symptoms, ongoing medication, sleep impairment, and missing her mother. Although she denied suicidal or homicidal ideations or plans, she noted taking pills that day to ease the pain by sleeping through the day and did not identify this as a suicide attempt. She was casually dressed, pleasant, cooperative, alert, oriented to person, time, place, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, mildly dysphoric mood, full range of affect, and no delusions, hallucinations, or impaired insight or judgment. In December 2007 the Veteran began attending group therapy sessions. In January 2008, she reported increased periods of crying, insomnia, feeling tired, increased anxiety, hallucinations about seeing her mother, fleeting suicidal thoughts without plans, and continuous medication. She was casually dressed, pleasant, cooperative, alert, oriented to person, time, place, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, euthymic mood with full range of affect, and no delusions, hallucinations, or impaired insight and judgment. Subsequently, the Veteran underwent a VA psychiatric examination in January 2008. The Veteran reported difficulty dealing with her mother's death in January 2007, to include guilt and intermittent suicidal, and worsening of depression and eating disorder. She reported ongoing symptoms of sleep impairment, difficulty with concentration and work performance, mild memory dysfunction, social isolation, irritability, and hopelessness. She noted emotional distance in her marriage, working as a substitute teacher, recent cleaning the floor several times daily, more controlling, and emotionally isolated from people around her. Upon clinical evaluation, she demonstrated cooperation, eye contact, a reliable historian, goal-directed speech and thought processes, normal behavior, orientation in all spheres, good memory function, sad and anxious mood and affect, good abstracting ability, and good insight and judgment. The Veteran also denied being acutely suicidal or homicidal. The examiner characterized the Veteran as moderately mentally disabled, does not represent a threat to herself or anybody else even though she has recurrent suicidal thoughts, capable of working on a full-time basis from a mental health point of view, able to follow directions, and attends to her own activities of daily living. The Board notes that while the January 2008 VA examiner noted the Veteran ingested medication in an overdose attempt in October 2007, as previously noted, the Veteran did not identify that occurrence as a suicide attempt at the October 30, 2007 VA treatment session. Review of VA treatment records thereafter show that in February 2008 she had no improvement, severe anxiety, insomnia, feeling tired, and fleeting suicidal ideas without plans. She was casually dressed, pleasant, cooperative, alert, oriented to person, time, place, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, slightly depressed mood with full range of affect, and no delusions, hallucinations, or impaired insight and judgment. In March 2008, she reported feeling "the same," had not been actively trying to change her mood symptoms, appeared to motivated to get herself back on track, and demonstrated passive suicidal ideation with no plan or intent. After review of the pertinent evidence of record, the Board finds the Veteran's service-connected recurrent major depression and bulimia nervosa more closely approximated manifestations of occupational and social impairment with deficiencies in most areas due to her psychiatric symptomatology for the entire period from July 8, 2004 to April 1, 2008. Nevertheless, her overall psychiatric symptomatology did not rise to the level of severity, frequency, or duration to demonstrate both total occupational and total social impairment at any time during the period from July 8, 2004 to April 1, 2008 to warrant a 100 percent rating. In fact, review of the evidentiary record indicated the Veteran demonstrated orientation in all spheres, good abstracting ability, capable of attending to her own activities of daily living, appropriate behavior, cooperation, organized and goal-directed thoughts, relevant and coherent speech, no delusions, and not a threat to herself or anybody else, denied being actively suicidal, and did not indicate intentions to harm herself. Moreover, while she reported memory impairment in November 2006 and hallucinations in January 2008, clinical evaluations throughout the appeal period revealed no impairment in recent memory function and denial of hallucinations by the Veteran. The Board notes that the Veteran has consistently reported suicidal thoughts. However, she did not have plans and she did not label her overdose as a suicide attempt. Further, the medical assessments do not place her in a category for being at risk for self-harm. Therefore, the record does not show that she was a persistent danger to herself or others during this period. As such, a rating of 70 percent, and no higher, is warranted from July 8, 2004 to April 1, 2008. See 38 C.F.R. § 4.130, Diagnostic Code 9434. The Board has considered the possibility of further staged ratings and finds that the scheduler ratings for the service-connected disability on appeal have been in effect for appropriate periods on appeal. Accordingly, additional staged ratings are inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007) Lastly, the Board notes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) was denied by the AOJ in May 2005 and January 2008 VA rating decisions. The Veteran did not file a timely notice of disagreement for that issue nor has it been subsequently raised in connection with the service-connected disability on appeal prior to July 8, 2004 or from July 8, 2004 April 1, 2008, thus it is not currently before the Board for appellate consideration. See Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). Rating in Excess of 30 Percent from April 1, 2008 to December 14, 2008 and in Excess of 50 percent from December 15, 2008 to December 22, 2009 On April 2, 2008, a statement from the Veteran was obtained and associated with the record. She reported her depression has gotten worse and cannot complete her job as a substitute teacher. She explained it is hard to get out of bed each day, stays in bed all day other than weekends, and is not working because she needs a lot of counseling. She further noted that on a daily basis she thinks about ending her life. Thereafter, in a second substantive appeal, dated in April 2008, the Veteran reiterated she does not get quality sleep every night, tries hard not to think about suicide, once took too many sleeping pills to never wake up (but did not specify as to when), and feels shame, anger, sadness, and disgust each day when she looks in the mirror. She also reported having panic attacks at least once a day and a bad memory, such as forgetting to turn off the stove, and getting in arguments with family especially her husband. In an April 2008 statement, the Veteran's husband reported observing his wife more and more unhappy about her mental, physical, and spiritual health. He explained that the Veteran does not like going out anymore, not able to exercise anymore due to physical disabilities which is a factor causing the depression, and still grieving the loss of her mother and grandmother. In addition, the Veteran often forgets conversations that occurred the day before, she has erratic sleeping habits, and sometimes loses track of the day of the week. In an April 2008 statement, the Veteran's daughter reported observing her mother's downward spiral into a dark place which began after the unexpected loss of her grandmother. She noted the Veteran wants to stay in the house, gained weight, fights panic attacks daily, forgets she turned on the stove, and has heard her say she doesn't want to live anymore. In a May 2008 statement, the Veteran reported she has attempted suicide several times, but did not specify as to when. VA treatment records show that in April 2008, the Veteran reported feeling more irritable towards her husband, severe anxiety and no active suicidal or homicidal ideas or plans. In May 2008, the Veteran presented with severe depression and anxiety with no improvement since last visit. In June 2008, she reported some improvement since last visit but ongoing sleep impairment. Approximately two weeks later she reported worsening of her situation with more family problems and sleep impairment. She denied active suicidal or homicidal ideations or plans. In August 2008, the Veteran reported "still having severe panic attack" and fleeting suicide ideas without active suicidal or homicidal ideations or plans. Upon evaluation, she was casually dressed, pleasant, cooperative, alert, oriented to person, time, place, and demonstrated coherent and relevant speech, good eye contact, well organized thoughts, depressed mood with full range of affect, and no delusions, hallucinations, or impaired insight and judgment, as noted in April 2008, May 2008, June 2008, and August 2008. At the October 17, 2008 VA psychiatric examination, the Veteran reported depressed all the time, isolation, anhedonia, sleep impairment, hopelessness, low energy level, and decreased motivation. She noted these symptoms affect her total daily functioning which results in relationship problems with husband and friends, but the relationship with her children are good, and not able to work secondary to depression. Upon clinical evaluation, orientation, communication, and memory were within normal limits and she demonstrated appropriate appearance, hygiene, behavior, and thought processes, good eye contact, and normal abstract thinking, as well as depressed affect and mood which occurs near-continuous and affects the ability to function independently, noted by not wanting to cook, eat, or take care of herself. There were no findings of panic attacks, suspiciousness, delusions, hallucinations, obsessional rituals, impaired judgment, suicidal ideation, or homicidal ideation. The examiner concluded the Veteran is not a reliable historian because has memory problems recalling the details of events and does not appear to pose any threat of danger or injury to self or others. Review of VA treatment records show that on October 21, 2008 the Veteran reported ongoing sleep impairment, more anxiety, called the suicide hotline a couple times, sadness about her weight, frustration about her memory problems, heard her mother's voice talking her out of suicidal thoughts, and lack of interest and energy. She denied active suicidal or homicidal ideations or plans. She was properly groomed, mood seemed slightly improved, dressed casually, cooperative, alert, oriented to person, time, place, speech was relevant and coherent, thoughts were well organized. Eye contact was limited at the beginning of the session, mood was depressed with full range of affect, and there no findings of delusions or hallucinations or impaired insight and judgment. In November 2008, the Veteran reported feeling anxious about upcoming surgery and the same clinical observations as in October 2008 were noted, except for good eye contact. In a December 15, 2008 letter, a VA treating physician noted the Veteran has not responded very well to her treatment and that her condition will prevent her from working at the same level she was before her recent surgery [open gastric bypass revision]. It was recommended the Veteran stay out of work to facilitate continuation of treatment until she gets stable and will continue to offer the Veteran medical management, individual therapy, group therapy, and any other services as needed. A December 15, 2008 VA treatment record also noted the Veteran reports still missing emotional support from her mother and grandmother, continues to take medication, and denied active suicidal or homicidal ideations or plans. In a January 2009 statement, the Veteran reported it takes her hours sometimes to get dressed and leave the house, her memory has worsened to the point she has to write down what she wants from the kitchen, and has a hard time dealing and understanding when told to do something. In a February 2009 statement, G. S. reported observing the Veteran still suffering from pain and never regaining that person she was so many years ago before the physical injuries. Review of VA treatment records show that in January 2009, the Veteran reported a general lack of pleasure in daily life, stress associated with recent surgery, family support, unable to genuinely connect with family members, and continuous medication. In March 2009, the Veteran reported problems in her marriage and ongoing feels of depression. In April 2009, she reported stress triggered suicidal ideations, devaluing thoughts, and self-blame. In January 2009, March 2009, April 2009, and May 2009, the Veteran demonstrated depressed mood with congruent affect and lethal ideations with no intentions or plans. In June 2009, July 2009, and August 2009, she demonstrated depressed mood with congruent affect and denied lethal ideations, intetions, and plans. At a September 2009 VA psychiatric examination, the Veteran reported her biggest complaint is being withdrawn and "just stay[ing] in [her] pajamas" and continues to suffer from depression, social isolation, crying, anger, lack of energy and interest in her usual activities, sleep impairment, and irritability. Sometimes she cleans profusely but most of the time she does not engage in any regular activities and stays home watching television. She described her marriage as "liv[ing] separate lives" and she last worked in 2008 as a substitute teacher due to physical pains and depression. Upon clinical evaluation, she maintained eye contact, goal-direct speech and thought processes, oriented in all spheres, good memory, depressed mood and affect, good abstracting ability, insight, and judgment, difficulty establishing and maintaining effective relationships, and difficulty completing complex commands because of her depression, and able to comprehend and implement simple commands and process information well. There were no findings of the Veteran being acutely suicidal or homicidal. The examiner concluded the Veteran does not represent an acute threat to herself or anybody else, has recurrent intermittent suicidal thoughts but no active plans to harm herself, and has not been violent to other people. Thereafter, review of VA treatment records show that in October 2009 the Veteran struggled to tolerate frustration, felt angry and abandoned, demonstrated euthymic mood, buoyant affect, and denied current thoughts of self harm including lethal ideations, intentions, and plans. In November 2009, she reiterated sleep impairment, depressive symptoms, frustration due to family and marital problems, and showed a scar from when she cut herself one week prior but denied active suicidal or homicidal ideations or plans. On December 1, 2009, she reported continuing stress and poor coping, noncompliance with assigned treatment work, overwhelmed, angry, and denied self-injury in past few weeks, lethal thoughts, intentions, and plans. In a December 23, 2009 letter, a VA treating physician noted the Veteran received individual psychotherapy since October 21, 2008 for major depressive disorder, severe, without psychotic features, obsessive compulsive disorder, and bereavement. It was further noted that for the duration of treatment, the Veteran presented with the following psychiatric symptomatology: [C]hronic debilitating symptoms that significantly impair activities of daily living including hygiene, emotional functioning, motivation, and judgment. These problems have further compromised parenting and employability. She has been extremely susceptible to stress; problems typically result in a negative cycle of psychosocial stress, maladaptive coping, and deterioration of functioning. Moods have been labile and relationships are unstable. She frequently exhibits a range of suicidal behaviors and more recently self-injury has been evidenced. After review of the pertinent evidence of record, the Board finds the Veteran's service-connected recurrent major depression and bulimia nervosa more closely approximated manifestations of total occupational and social impairment due to her psychiatric symptomatology for the entire period from April 2, 2008 to December 22, 2009. As such, a rating of 100 percent is warranted from April 2, 2008 to December 22, 2009 for recurrent major depression and bulimia nervosa. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Other Considerations The Board notes that bulimia nervosa may be rated under Diagnostic Code 9521, which uses the criteria set forth in the Rating Formula for Eating Disorders. 38 C.F.R. § 4.130. Under the Rating Formula for Eating Disorders, a noncompensable rating is warranted when there is binge eating followed by self-induced vomiting or other measures to prevent weight gain, or resistance to weight gain even when below expected minimum weight, with a diagnosis of an eating disorder but without incapacitating episodes. The 10, 30, 60, and 100 percent criteria all require incapacitating episodes. For the purposes of the Rating Formula for Eating Disorders, an incapacitating episode is a period during which bed rest and treatment by a physician are required. Id., Rating Formula for Eating Disorders at Note 1. In this case, the evidence does not show that the Veteran has been prescribed bed rest for her bulimia nervosa, and therefore the Rating Formula for Eating Disorders is not more favorable to her during the entire appeal period. ORDER A rating in excess of 10 percent prior to July 8, 2004 for recurrent major depression and bulimia nervosa is denied. A 70 percent rating from July 8, 2004 to April 1, 2008 for recurrent major depression and bulimia nervosa is granted subject to the law and regulations governing the payment of VA compensation benefits. A 100 percent from April 2, 2008 to December 22, 2009 for recurrent major depression and bulimia nervosa are granted, subject to the law and regulations governing the payment of VA compensation benefits. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs