Citation Nr: 18140757 Decision Date: 10/05/18 Archive Date: 10/05/18 DOCKET NO. 16-29 607 DATE: ORDER For the entire period on appeal, entitlement to a 70 percent rating, but no higher, for dysthymic disorder is granted, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT For the entire period on appeal, the record evidence shows that the Veteran’s service-connected dysthymic disorder most nearly approximates occupational and social impairment with deficiencies in most areas, but does not more nearly approximate total occupational and social impairment for any period on appeal. CONCLUSION OF LAW For the entire period on appeal, the criteria for a rating of 70 percent, but no higher, for dysthymic disorder are met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.129, 4.130, Diagnostic Code 9433 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1993 to August 2005. This matter is on appeal from a July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted an increased, 50 percent rating for service-connected dysthymic disorder. The Veteran timely perfected an appeal of the rating assigned. See July 2015 Notice of Disagreement; May 2016 Statement of the Case; June 2016 VA Form 9. Increased Rating The Veteran contends that he is entitled to a higher disability rating for his dysthymic disorder, which is assigned a 50 percent evaluation. He asserts that his disability is more severe than what is represented by the currently assigned ratings. A. Legal Criteria Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant evidentiary window begins one year before the Veteran filed his claim for an increased rating, and continues to the present time. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s dysthymic disorder has been evaluated under 38 C.F.R. § 4.130, Diagnostic Code 9433. Under the General Rating Formula For Mental Disorders, a 50 percent rating is assigned 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; 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 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; 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 work-like setting); and inability to establish and maintain effective relationships. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. B. Factual Background Turning to the evidence of record, a January 2014 VA mental health note shows that the Veteran reported improvement in his mood since his last office visit. He reported that he quit his job due to foot pain and that he was back in school pursuing a business degree. He also reported that his nightmares were reduced to about one per week. On examination, the Veteran was casually dressed and cooperative, with fair eye contact. His mood was “better,” and his affect was euthymic. His speech was normal in rate and rhythm, and there were no gross motor abnormalities. The Veteran’s thoughts were logical and goal directed, his thought content was negative for homicidal ideation, suicidal ideation, or psychotic symptoms, and his insight and judgment were fair. The Veteran scored a 2 on a PHQ-9, suggesting that he “may not need depression treatment.” In a January 2015 letter, the Veteran’s spouse indicated that the Veteran displayed sudden mood swings and a loss of interest in family-fun activities. She also reported that the Veteran had no friends and that his “hygiene and appearance have diminished[,] and [he] takes showers three to four times a week.” She also reported that the Veteran had trouble sleeping and that he “has become obsessed with cleaning.” She indicated that he sometimes stays up all night cleaning the house. A May 2015 VA mental health note shows that the Veteran felt “like the walls are closing in on me and I can’t concentrate to get things done in time.” The Veteran reported that he previously worked as a mail sorter, but that he could not keep up with the job due to a lack of concentration. He also reported financial problems and that he “briefly considered suicide as [a] financial solution for his family.” He indicated that his sleep had been reduced to one hour per night due to financial worries. On examination, the Veteran was casually dressed. He was oriented and cooperative, with reduced eye contact. His mood was reserved/dysphoric, and his affected was congruent with mood and reduced in range. His speech was appropriate, spontaneous, and articulate. His thought processes were clear, coherent, logical, and goal-directed. He thought content was positive for intermittent vague suicidal ideation and negative for homicidal ideation, delusions, paranoid ideation, ideas of reference, and hallucinations. His judgment was appropriate, and his insight was moderate. The assessment was “apparent progression of mood problem to major depression.” The Veteran was afforded a VA examination in June 2015. The Veteran reported current symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, and suicidal ideation. On examination, the Veteran was alert, oriented, and “somewhat dramatically avoidant of eye contact.” His affect was guarded, but appropriate and without lability. There were no disorders of perception. The Veteran reported problems with memory, but he was “very accurate with medication names and dosages.” His thought processes were clear and goal-directed, and his thought content consisted of “vague themes of frustration.” He denied suicidal or homicidal ideation at the present time. The Veteran scored 49 on the Beck Depression Inventory, which reflects severe depression, but the examiner noted that the score and clinical presentation “appear somewhat inconsistent with medical records which reflect no depression at last psychiatric visit in January of 2014.” The examiner diagnosed the Veteran with persistent depressive disorder, in partial remission, and indicated that the Veteran’s depressive disorder caused 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. A June 2015 VA mental health consultation shows that the Veteran reported memory problems and low self-esteem. He reported that he had suicidal thoughts “almost every week lately,” but that he did not think suicide was a good idea because of his children. The Veteran reported that he did not get along well with others and that he had no friends. He also reported that he spent his free time in his room thinking and “just staring at the wall.” He indicated that he was “sometimes” able to take care of all of his daily needs and that his wife reminded him when to take a shower. On mental status examination, the Veteran’s hygiene was adequate, and his grooming and dress were consistent with the situation. He was cooperative and reasonable, alert and attentive, oriented, and lethargic. His mood was depressed, and his affect was congruent with his mood. His perception was normal, and his thought processes were normal, but “slightly circumstantial.” His thought content was normal, and his insight and judgment were fair. His memory was impaired. The diagnostic impression was major depressive disorder and anxiety disorder. A June 2015 VA mental health note shows that the Veteran reported being on academic suspension at college. He indicated that he tries to read the newspaper, but his mind wanders. He reported that he had been busy taking care of his three and six-year-old sons since they were out of school for the summer. He also reported that he watched some televisions and movies. The Veteran indicated that his sleep had been better and that he still had nightmares, but they were “not as harsh.” On examination, the Veteran was casually dressed, oriented with moderate eye-contact, and cooperative. His mood was dysphoric, and his affect was congruent with mood. His speech was appropriate, spontaneous, and articulate. His thought processes were clear, coherent, logical, and goal-directed. His thought content was negative for suicidal ideation, homicidal ideation, delusions, paranoid ideation, ideas of reference, and hallucinations. His judgment was appropriate, and his insight was moderate. A September 2015 VA psychology note shows that the Veteran came to a family/marital therapy session and “immediately began to cry after coming to the office.” He reported that his wife was seeking a divorce. He reported “passive (no plan) suicidal thoughts” since the previous night, but he denied any active suicidal ideation, stating that he is the person who has to take care of his two sons. A November 2015 VA psychology note shows that the Veteran reported experiencing emotional distress due to his wife presenting him with divorce paperwork. The Veteran indicated that he was interested in working on managing his anger outbursts and controlling his overall emotions. On examination, the Veteran’s mood was euthymic, and his affect was congruent with mood. His hygiene was adequate, and his behavior was cooperative and reasonable. His insight and judgment were intact, and he was alert and oriented to all spheres. His memory was intact, and his perception was within normal limits. His thought processes and thought content were unremarkable. He denied any current thoughts about death, dying, or killing himself, and he denied having any current plan to hurt or kill someone else. A February 2016 VA psychology note shows that the Veteran’s mood was depressed, and, although his hygiene was adequate, he was dressed in sweats and had not shaved. An April 2016 VA mental health note shows that the Veteran reported that his wife still wanted a divorce, but they were communicating better. He reported that his sleep and appetite were good. On examination, the Veteran was casually dressed and well-groomed. He was oriented and cooperative, and his speech was appropriate. His mood was even, and his affect was congruent with mood, with reduced range. His thought processes were clear, coherent, logical, and goal-directed, and his thought content was negative for suicidal ideation, homicidal ideation, delusions, paranoid ideation, ideas of reference, and hallucinations. The Veteran was afforded a VA examination in June 2016. The Veteran reported current symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. On examination, the Veteran’s hygiene and grooming were marginal. He was alert and oriented. He was cooperative, and his speech was normal. He was generally attentive, and no significant difficulties with concentration were noted. He reported memory problems related to his mood. He indicated that the primary mental health symptoms he was experiencing were depression, anxiety, poor concentration, and irritability. The Veteran’s mood was “down,” and his affect was dysphoric. He was tearful. He denied having significant interests, and he reported experiencing anhedonia. The Veteran reported social isolation, and he stated that he had no friends. He denied current thoughts of harming himself or others. His thought processes were organized, logical, coherent, and sequential. His thought content was marked by cognitive distortions consistent with a depressed mood. He denied experiencing hallucinations in any modality, and no perceptual disturbances were noted. No perseverative, bizarre, or delusional ideation was observed during the examination. The Veteran was administered the Assessment of Depression Inventory, and his scores were indicative of a severe level of depression; however, there was an indication that he may have been exaggerating his symptoms. The examiner diagnosed the Veteran with persistent depressive disorder (dysthymia) and indicated that the Veteran’s depressive disorder caused occupational and social impairment with reduced reliability and productivity. The examiner opined that the Veteran’s level of functional impairment related to mental health symptoms had increased since 2005. The examiner indicated that the Veteran would need reasonable accommodations in order to function effectively in an occupational environment. The examiner opined that the veteran was capable of caring for himself; however, his personal hygiene was marginal. A July 2016 VA psychology note shows that the Veteran reported being in the middle of divorce proceedings. On examination, the Veteran’s mood was depressed and anxious, and his affect was congruent with mood. His hygiene was adequate, although he was dressed in sweats and had not shaved. His behavior was cooperative and reasonable, and he was alert and oriented to all spheres. His memory was intact, and his perception was within normal limits. His thought processes and thought content were unremarkable. He denied any current thoughts about death, dying, or killing himself, and he denied having any current plan to hurt or kill someone else. A July 2016 VA primary care note shows that the Veteran reported problems with sleeping, mood swings, and poor appetite. An August 2016 VA mental health note shows that the Veteran reported significant stressors related to his divorce. He reported some fatigue, impaired sleep, anxious rumination, and down moods. He denied any suicidal or homicidal ideation, and he reported that his children were protective factors. He denied any recent anger outbursts. He also denied hallucinations. On examination, the Veteran’s hygiene and grooming were good. He was cooperative, alert, and oriented. His speech was normal. His affect was irritable and dysthymic, but more reactive than previously. His thought processes were linear, organized, and future/goal oriented, and his thought content was relevant to the discussion. His insight was limited, and his judgment was fair. He was judged to be at increased risk of suicide, but no acutely dangerous to himself. A November 2016 VA mental health note shows that the Veteran reported problems with concentration. He also reported that he was living with his cousin. A June 2017 VA treatment record shows that the Veteran was referred to mental health after expressing passive suicidal ideation. The Veteran indicated that he sometimes has suicidal thoughts, but he denied acting on the thoughts. He reported that his sons and his father were very important support factors in his life. On examination, the Veteran was calm and cooperative, his mood and affect were normal, and his speech was clear. His appearance was neat and clean. The Veteran reported that he lived alone and was able to care for himself. C. Analysis Taking all factors into consideration with application of the approximating principles of 38 C.F.R. § 4.7, and the benefit-of-the-doubt doctrine, the Board finds that for the entire appeal period the Veteran’s dysthymic disorder has most nearly approximated occupational and social impairment, with deficiencies in most areas. The above-cited evidence reflects that the Veteran’s dysthymic disorder has primarily been manifested by depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; near continuous depression affecting the ability to function independently, appropriately, and effectively; concentration problems; mild memory loss; passive suicidal ideation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and severe difficulty establishing and maintaining effective relationships. Collectively, these symptoms are of the type, extent, severity and/or frequency to result in occupational and social impairment in most areas of the Veteran’s life, thus indicating a moderately-severe disability picture with deficiencies in most areas. Nonetheless, the overall disability picture demonstrated by the evidence is not consistent with total occupational and social impairment, as is required for the maximum, 100 percent, disability rating. The maximum schedular rating of 100 percent is not warranted in this case because there is not 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; and memory loss for names of closes relatives, own occupation, or own name. In this regard, there is no documentation of symptoms such as gross impairment in thought processes or communication or persistent delusions or hallucinations; in fact, the Veteran has been consistently able to actively communicate both in individual therapy and during VA examinations. His speech was within normal limits during examinations, and the examiners detected no evidence of thought disorders or impaired thought processes. Additionally, there is no evidence of delusions or hallucinations, much less evidence rising to the level of persistent delusions or hallucinations. Accordingly, the Board finds that the Veteran has not manifested gross impairment of thought processes or communication, or persistent delusions or hallucinations. Similarly, his symptoms have not been manifested by grossly inappropriate behavior or persistent danger of hurting self or others. The Veteran consistently denied any past or current violence or homicidal ideation. While the record shows some passive suicidal ideation, the Veteran has consistently denied any history of suicide attempts or plan. This evidence indicates that although the Veteran experiences suicidal ideation, which is a symptom enumerated in the criteria for a 70 percent rating, he clearly does not exhibit a persistent danger to himself or others, as contemplated by the criteria for a 100 percent rating. Nor does the record show symptoms such as intermittent inability to perform daily living activities (including maintenance of minimal personal hygiene), disorientation to time or place, or memory loss of names of close relatives own occupation, or own name. In this regard, the evidence of record shows that the Veteran was consistently noted as oriented to person, time, and place. He generally presented as adequately groomed and appropriately dressed during individual therapy and VA examinations. Although the Veteran’s hygiene was occasionally noted to be marginal, and he was noted to be unshaved at time, the record also shows that the Veteran was capable of living alone, taking care of his children, and maintaining minimal personal grooming and hygiene. Thus, even if the Veteran occasionally neglects his personal appearance and hygiene, which is one of the symptoms enumerated in the criteria for a 70 percent rating, he clearly does not exhibit an inability to perform activities of daily living, as contemplated by the criteria for a 100 percent rating. Similarly, although the Veteran did report memory and concentration problems, as discussed above, there is no lay or medical evidence that the Veteran’s psychiatric status was so severe that he demonstrated memory loss for names of close relatives, his occupational status, or his own name. Further, total occupational and social impairment has not been shown. While the record demonstrates marked social isolation and emotional detachment, the evidence also shows that the Veteran is close to his sons and maintains social relationships with some family, to include his cousin. The Board emphasizes that, in analyzing this claim, the symptoms identified in the Rating Formula have been considered not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant a higher rating but has required that the Veteran demonstrate particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. See Mauerhan, supra; but see Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). (Continued on next page) The Board has considered a staged rating, but finds that the totality of the evidence shows a rating of 100 percent is not warranted at any point during the period on appeal. At times the Veteran’s treatment records and examination results indicate improved symptoms, which may, in fact, warrant a lower rating than 70 percent. However, giving the Veteran the benefit of the doubt, the Board finds that a 70 percent rating is warranted for the entirety of the period on appeal. All psychiatric symptoms have been considered in reaching the above conclusion. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The statements of the Veteran and others are considered competent, credible, and probative and were considered in reaching the above determinations. DEBORAH W. SINGLETON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Kipper, Associate Counsel