Citation Nr: 18141063 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 16-20 816 DATE: October 9, 2018 ORDER Entitlement to an initial disability rating greater than 50 percent for service-connected major depressive disorder associated with status post left wrist fracture is denied. FINDING OF FACT The service-connected major depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity; it has not been manifested by occupational and social impairment, with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating greater than 50 percent for service-connected major depressive disorder associated with status post left wrist fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1978 to September 1985. Entitlement to an initial disability rating greater than 50 percent for service-connected major depressive disorder associated with status post left wrist fracture. The Veteran asserts that his service-connected major depressive disorder is more disabling than reflected by the initial 50 percent disability rating that has been assigned. In his May 2015 notice of disagreement, he contends that his disability results in serious impairment. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran’s service-connected major depressive disorder is rated pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. In order to warrant a rating in excess of his currently-assigned 50 percent rating, the evidence must show 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 inability to establish and maintain effective relationships. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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, 442 (2002). In adjudicating a claim for an increased disability rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. A private medical record from H. J., M.D., dated in November 2014, shows that the Veteran was said to be currently employed as a sales manager, and had been employed in this capacity for the preceding five years. He was married with two children. He reported that he and his wife would deal with the psychiatric issues the best that they could. He stated that he did not have many friends. His described his relationship with his children as “pretty good.” He noted that his short-term memory was problematic. He indicated that he was mostly home bound when not at work. He described that his service-connected wrist pain would cause him to be irritable, angry, depressed, and sleep impaired. He reported feeling nervous, especially when in pain, and that he would worry and have difficulty relaxing. He would be restless and easily annoyed. He would be sad most of the time and felt pessimistic about the future. He would derive little pleasure from things that he used to enjoy. He denied any suicidal thoughts. He also described difficulty concentrating and a decrease in sexual desire. Mental status examination revealed that he appeared his stated age, and presented wearing casual attire. His was cooperative and generally able to relate to the examiner. He had blunted affect with psychomotor retardation. Speech showed no aphasia or dysarthria. Tone and volume were normal with no pressured speech. Mood was characterized by anxiety, depression, and hyper arousal symptoms. Affect was congruent to his mood. There was no flight of ideas, looseness of association, circumstantial speech, or preservation. There was thought blocking, word searching, and delayed thought. There was were no auditory, visual, or tactile hallucinations. He denied suicidal or homicidal thought or any self-injurious behavior. There was no paranoia or delusions. He reported a problem with memory, described as his wife telling him he would forget appointments and starting tasks but not finishing them. He was alert and oriented. The diagnosis was mood and anxiety disorders due to wrist pain. A VA examination report dated in March 2015 shows that the Veteran was diagnosed with recurrent, moderate, major depressive disorder. The level of impairment from the disability was said to be occupational and social impairment with reduced reliability and productivity. The Veteran reported that he had been married for 26 years and had two adult children. He indicated that his marriage was going well, and that he had a good relationship with his children. He also indicated that he had three siblings with whom he also had good relationships. He stated that he was currently employed with a national electronics and appliance leasing company. He noted that he had been experiencing depression, along with increased irritability and forgetfulness on the job. He also noted that he had been experiencing sleep disturbance and was becoming socially isolated. The examiner indicated that the symptoms associated with the Veteran’s disability included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or a work-like setting. The Veteran was fully oriented, neatly groomed, and adequately engaged throughout the session, providing details regarding his overall well-being. The Veteran was not considered to be a current imminent or increased risk of harm to himself. A VA outpatient treatment record dated in December 2015 shows that the Veteran was treated for feeling down, depressed, or hopeless for several days. Screening results were suggestive of mild depression. Collectively, the evidence reflects that throughout the appeal period, the Veteran’s major depressive disorder has been manifested predominantly by symptoms no more severe than the following: depressed mood and affect, decreased motivation, impaired concentration, memory loss, irritability, anxiety, and sleep impairment. While the Veteran has reported becoming increasingly isolated, he nonetheless established that his marriage was going well, that he had a good relationship with his children and siblings, and that he continued to be employed. These symptoms more closely approximate the criteria for a 50 percent disability rating. The Board has reviewed the objective findings reported by medical professionals since the Veteran filed his claim. At no point during the appeal period does the Veteran’s overall major depressive disorder symptomatology meet the criteria for a disability rating in excess of 50 percent. In this regard, the evidence does not show that the Veteran has speech intermittently illogical, obscure, or irrelevant, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, spatial disorientation, or neglect of personal appearance and hygiene, as associated with the next higher 70 percent disability rating. The fact that the Veteran may have exhibited one or two symptoms listed among the criteria for one of the higher disability ratings does not mean that the overall disability picture more closely approximates the criteria for such higher disability rating. The objective medical findings recorded and tracked throughout the appeal period most closely approximate the symptoms listed under the criteria for a 50 percent disability rating. The Veteran’s disability due to his major depressive disorder symptomatology has been evaluated by medical professionals that have performed a full clinical evaluation. The Board has considered the statements of the Veteran as to the extent of his symptoms over the course of the entire appeal. He is certainly competent to report that his symptoms are worse. Layno v. Brown, 6 Vet. App. 465, 470 (1994). In evaluating a claim for an increased disability rating, however, VA must consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. While there has been some variation in the severity of the Veteran’s symptoms during this appeal period, the severity of his symptomatology has been relatively constant, therefore, the assignment of staged ratings is not warranted. 38 C.F.R. § 4.71a; Fenderson, 12 Vet. App. at 119. Accordingly, the Board finds that the overall disability picture most closely approximates the criteria for a 50 percent disability rating, and the claim for an increased disability rating must be denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel