Citation Nr: 1804317 Decision Date: 01/22/18 Archive Date: 01/31/18 DOCKET NO. 09-27 673 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUE Entitlement to a disability rating in excess of 50 percent for unspecified depressive disorder with alcohol use disorder (previously major depression; previously diagnosed as adjustment disorder with depression). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD P.S. McLeod, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1998 to November 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 and August 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. In December 2014, the Veteran withdrew a request for a hearing which he had previously made. He also canceled a hearing scheduled for August 2017. These matters were previously before the Board in June 2015 and were remanded for further development. Subsequent to the Board's previous remand the Veteran perfected an appeal for his claim for entitlement to a disability rating in excess of 50 percent for unspecified depressive disorder with alcohol use disorder, and his representative waived RO consideration of an October 2017 VA examination associated with the claim. Therefore the matter is properly before the Board. The Board notes that the Veteran's claims file included paperwork indicating that the Veteran was seeking entitlement to an increased rating for his service-connected ankylosis, status-post left ring finger boutonniere deformity, post-operative with scar and left hand strain. However, the Board reached a decision on this issue in a June 2015 decision. The June 2015 Board decision was not appealed or otherwise returned to the Board. Therefore, the issue is not currently before the Board. The issues of entitlement to a disability rating in excess of 20 percent for postoperative right shoulder rotator cuff repair, entitlement to a disability rating in excess of 20 percent for residual scars associated with postoperative right shoulder rotator cuff repair, and entitlement to a disability rating in excess of 20 percent for lumbar spine degenerative disc disease have been raised by the record in an October 2017 Brief, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). The Board notes that these issues were addressed in an April 2016 Statement of the Case but were specifically excluded from appeal in an April 2016 Substantive Appeal, in which the Veteran clarified that he was only seeking an appeal on the depressive disorder rating issue. Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). FINDING OF FACT For the period on appeal, the Veteran's unspecified depressive disorder with alcohol use disorder have approximated at least occupational and social impairment with deficiencies in most areas but has not led to total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating of 70 percent for PTSD have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran's unspecified depressive disorder with alcohol use disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is warranted if it is productive of 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. A 70 percent rating is assigned 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); and an inability to establish and maintain effective relationships. 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 or minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives and own occupation or name. The symptoms listed in DC 9411 are not intended to constitute an exhaustive list, but rather 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). When the symptoms and/or degree of impairment due to a Veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. Mittleider v. West, 11 Vet. App. 181 (1998). Of note, that portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities was based on the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) prior to a change effective August 4, 2014. 38 C.F.R. § 4.130. The regulation has been changed to reflect the current DSM, the DSM-V. In July 2014 the Veteran submitted a claim for an increased rating for his unspecified depressive disorder with alcohol use disorder. In July 2014 the Veteran reported to a VA mental health walk-in clinic seeking help due to severe depression and inability to function at work. The Veteran underwent a VA mental disorders examination in July 2014. The VA examiner characterized the Veteran's unspecified depressive disorder as manifesting with occupational and social impairment with reduced reliability and productivity. The Veteran provided that he was unmarried, divorced in 2002, and had a 14 year old son whom he had not seen in two years because his son did not want to see him. The Veteran's other relationships were limited to one "good friend" but no real social life, as the Veteran stated he did not go out and was content to remain in his house doing "nothing." It was noted that the Veteran was working in the prison system and had recently taken a leave from that job due to "irritability and not wanting to do anything and thinking that he needs a break." The Veteran's symptoms at the time were described as no desire to do anything, anhedonia, feelings of a lack of purpose in life, suicidal ideation without intent, loss of appetite, sleep issues causing consistent sleep of "about one hour," concentration difficulties, lack of follow-through on tasks, irritability with outbursts family that almost became violent, and depression. In April 2015 the Veteran underwent a VA mental disorders examination. The VA examiner characterized the Veteran's unspecified depressive disorder as manifesting with occupational and social impairment with reduced reliability and productivity. The Veteran reported continued social isolation, a continued leave of absence from work, and continued difficulties with sleep and dreams. The Veteran also reported that he was no longer feeling depression but did endorse apathy, disinterest, social withdrawal, and an appetite that was "hit or miss." Regarding his drinking habits the Veteran reported that his drinking had increased and that he was drinking more days than not, to include "at least a six pack in a sitting." The VA examiner endorsed a depressed mood and chronic sleep impairment as the Veteran's symptoms and indicated that the Veteran was well groomed and goal-directed with no suicidal or homicidal ideations or evidence of psychosis. In November 2016 the Veteran underwent a VA mental disorders examination. The VA examiner characterized the Veteran's unspecified depressive disorder as manifesting with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported that he had not heard from his son in the last four years and that he had experienced a "clinically significant decrease in social functioning" due to depression and anxiety. The Veteran's chief complaints at the time of the examination included trouble with falling asleep and maintaining sleep, depression, decreased interest in activities, decreased energy and motivation, decreased concentration, irritability, social withdrawal, decrease in appetite, and excessive guilt and hopelessness. The Veteran also reported experiencing his first panic attack "approximately six months ago." The Veteran also reported that he felt his depression had increased and characterized it as moderate in severity. A history, or present manifestations, of suicidal and homicidal ideations were denied by the Veteran. The Veteran stated that he drank six beers per night and described the reasoning as a self-medication method to aid in sleep and curb depression. The VA examiner identified the specific symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The VA examiner further opined that "based on the chronicity of the [Veteran's] depression, anxiety and sleep disturbance complaints, absence of mental health treatment, and current report of subjective sense or worsened mental health symptoms, it is more likely than not his depression and alcohol use related issues have progressively worsened relative to his last mental health disorder evaluation. In September 2017 the Veteran underwent a VA mental disorders examination. The VA examiner characterized the Veteran's unspecified depressive disorder as manifesting with occupational and social impairment with reduced reliability and productivity. The VA examiner noted an increase in the Veteran's estrangement from his family. The Veteran reported that he was no longer taking Celexa and Klonipin but was taking Ambien as a sleep aid. The Veteran reported that he continued to drink every night. The VA examiner endorsed symptomatology including depressed mood, suspiciousness, chronic sleep impairment, flattened affect, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and impaired impulse control. The VA examiner also noted that the Veteran remained underweight. Based on a review of the evidence, and in affording the Veteran the benefit-of-the-doubt, the Board concludes that a rating of 70 percent, but no higher, is warranted for the period on appeal. In this case, the level of impairment and symptoms shown throughout the Veteran's VA examinations during this appeal has been relatively consistent. The Veteran's symptoms revealed depression, social isolation, anhedonia, chronic sleep impairment, disturbances in motivation and mood, flattened affect, suspiciousness, isolated suicidal ideation and violent encounters with family members, difficulty and inability in establishing or maintaining effective relationships, and loss of appetite. Of note is the complete deterioration and lack of relationship that the Veteran has with his only son. These symptoms, particularly the findings regarding the inability to establish and maintain effective relationships and the severe loss of appetite, demonstrate that the assigned 50 percent evaluation is insufficient, and a higher evaluation of 70 percent, but no higher, is warranted. The evidence of record does not reflect that the Veteran suffers from gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. The evidence also does not reflect that the Veteran is in persistent danger of hurting either himself or others. The record does not suggest that the Veteran is not capable of managing his own finances and caring for himself. A review of the VA records reveals only isolated incidents of the Veteran reporting suicidal ideation without intent, and the Veteran has not experienced obsessional rituals which interfere with his routine activities. Finally, the Veteran's hygiene has not been noted to be a significant deficiency, and he has not demonstrated disorientation to time or place or any memory loss of significance, to include his own relatives or name. Therefore, when considering the medical evidence as a whole, the Board finds that the Veteran's symptoms do not result in total occupational and social impairment. Rather, a grant to 70 percent, though not higher, is appropriate in this case. Neither the Veteran nor the representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER A disability rating of 70 percent, but no higher, is granted for unspecified depressive disorder with alcohol use disorder for the period on appeal, subject to the laws and regulations governing monetary benefits. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs