Citation Nr: 18141308 Decision Date: 10/10/18 Archive Date: 10/10/18 DOCKET NO. 16-15 139 DATE: October 10, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as major depressive disorder, recurrent, in partial remission, is denied. FINDING OF FACT During the period on appeal, the Veteran’s acquired psychiatric disability has been characterized by depressed mood, mild to moderate anxiety, and chronic sleep impairment; occupational and social impairment with reduced reliability and productivity has not been shown. CONCLUSION OF LAW The criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as major depressive disorder, recurrent, in partial remission, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1994 to July 2008. Entitlement to a disability rating in excess of 30 percent for an acquired psychiatric disorder, characterized as major depressive disorder, recurrent, in partial remission The Veteran is seeking an increased disability rating for her service-connected acquired psychiatric disability. Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Although the Board typically considers only those factors contained wholly in the rating criteria, it is proper to consider factors outside the specific rating criteria when appropriate to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where entitlement to compensation 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. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s acquired psychiatric disability, characterized as major depressive disorder, has been assigned a 30 percent rating under 38 C.F.R. § 4.130, DC 9434. In order to warrant a 50 percent rating, the evidence must demonstrate occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-term and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment or impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing effective work and social relationships.. 38 C.F.R. § 4.130, DC 9434. After a review of the evidence of record, the Board determines that a rating in excess of 30 percent is not warranted. As explained below, although the Veteran has occasional symptoms that could support a higher rating, the evidence of record demonstrates that the Veteran’s symptoms do not rise to the level of occupational and social impairment with reduced reliability and productivity such that a 50 percent rating would be warranted. Initially, the report from the June 2014 VA examination shows that the symptoms of the Veteran’s acquired psychiatric disability are consistent with the 30 percent rating that she currently receives and do not warrant an increase to a 50 percent rating. At the examination, the Veteran presented with symptoms depressed mood, loss of interest and pleasure, fatigue and loss of energy, appetite disturbance, sleep disturbance, worthlessness and guilt, and difficulty concentrating. On examination, the examiner reported that the Veteran was dressed appropriately with good hygiene and was alert, attentive, and oriented to person, place, time, and situation. The examiner also observed that the Veteran exhibited adequate attention and concentration during the evaluation, some evidence of abstract reasoning, that her thought processes were logical and organized, and that her recent and remote memory abilities appeared intact. Further, the VA examiner reported that the Veteran displayed no evidence of delusions, did not exhibit auditory or visual hallucinations, and that the Veteran expressly denied experiencing hallucinations or delusions. Finally, the VA examiner reported that symptoms of depressed mood and chronic sleep impairment applied to the Veteran’s service-connected acquired psychiatric disability. Based upon her observations and findings, the VA examiner opined that the Veteran exhibited occupational and social impairment with 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 Board finds that the June 2014 VA examiner’s opinion is well supported by her findings and consistent with the symptoms for a 30 percent rating. Specifically, the Board notes that the symptoms observed by the June 2014 VA examiner are not sufficient to warrant an increase to a 50 percent rating because she did not report that the Veteran exhibited flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks, difficulty in understanding complex commands, impairment of short-term and long-term memory, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. Thus, although the Veteran reported experiencing symptoms consistent with disturbances of motivation and mood, no symptoms warranting a 50 percent rating were observed by the examiner. Additionally, the Veteran’s treatment records fail to document symptoms warranting a rating in excess of 30 percent, or that her disorder had markedly worsened from the time of her last VA examination. First, in treatment records from July 2017, October 2016, and March 2014, the Veteran denied suicidal and homicidal ideation. Additionally, at a psychotherapy appointment July 2017 the Veteran appeared on time, exhibited normal speech in pronunciation, pacing, volume, and enunciation, maintained adequate eye contact, exhibited logical and coherent thinking with no evidence of delusions or hallucinations, and exhibited an affect congruent with content. Similarly, at an appointment in February 2017, the Veteran appeared on time, dressed casually with appropriate hygiene, exhibited normal affect, and did not exhibit any thought disorder or psychosis. Moreover, in treatment records from May 2015 and June 2016, the Veteran responded to the question of whether she was feeling down, depressed, or hopeless by replying “not at all.” Additionally, while treatment records indicated mild to moderate anxiety, including treatment records from October 2016 (mild anxiety) and February 2017 (moderate anxiety), numerous treatment records from the period on appeal reflect that the Veteran did not suffer from anxiety and the Veteran has frequently denied experiencing anxiety, including in March 2017. Finally, in treatment records from August 2017, the Veteran reported that she had an improved mood and had been engaged social, attending church. In light of these clinical evaluations, the Board finds that the Veteran does not exhibit objective symptomatology that would be sufficient to warrant a rating in excess of 30 percent for the period on appeal. The Board acknowledges that several treatment records from 2017, including July 2017, show that the Veteran was observed as having tangential speech and that in a March 2017 treatment record the Veteran reported low motivation, difficulty concentrating, and difficulty asserting her needs at work. Although such symptoms approximate circumstantial speech and disturbances of motivation and mood, which are criteria of a 50 percent rating, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the Veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board determines that these symptoms alone are insufficient to warrant an increased rating given the treatment records do not reflect that the Veteran exhibited flattened affect, panic attacks, difficulty in understanding complex commands, impaired short-term and long-term memory, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms, but should also consider any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). Thus, the Board has also considered the extent to which there are other indications of occupational and social impairment, such as difficulty in adapting to stressful circumstances or the inability to establish and maintain effective relationships that may cause deficiencies in most areas, to include social and occupational inadaptability. In this regard, it is clear that the Veteran’s acquired psychiatric disability has some impact on her social and occupational functioning. Nevertheless, the evidence does not indicate that a rating in excess of 30 percent is warranted. Specifically, August 2017 treatment records reflect that the Veteran had been attending church. An April 2017 treatment record reflects that the Veteran was taking online courses, was involved in a local literacy program, and had a general desire to engage in pleasant events. February 2017 treatment records reflect that the Veteran reported completing information technology school, performing volunteer work, and a desire to return to work. Moreover, although the Veteran experienced periods of unemployment during the appeal period, and reported pervasive difficulties in maintaining employment, the evidence also reflects that she had periods of employment, including an August 2017 treatment record indicating that she was settling in at her new job and the June 2014 VA examination, where she reported that she had worked part-time from 2011 to 2013 and full-time since 2013. Therefore, the Veteran did not display occupational and social impairment with reduced reliability and productivity even when factoring in other relevant criteria outside of the rating code. See Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). In considering the appropriate disability rating, the Board has also considered the statements from the Veteran that her acquired psychiatric disability is worse than the rating she currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses, she is not competent to identify a specific level of disability of her acquired psychiatric disability according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (“although interest may affect the credibility of testimony, it does not affect competency to testify”). On the other hand, such competent evidence concerning the nature and extent of the Veteran’s acquired psychiatric disability has been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which this disorder is evaluated. Specifically, with respect to her psychiatric disorder, although the Veteran reported that she had a depressed mood, low motivation, sleep disturbances, losses of interest and pleasure, and difficulty concentrating, these symptoms were discussed and addressed by the June 2014 VA examiner and other treating physicians. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran’s level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that the Veteran’s disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of the Veteran’s symptoms related to her acquired psychiatric disability on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic code. See Mittleider v. West, 11 Vet. App. 181 (1998). Moreover, as was established in Mauerhan, 16 Vet. App. at 444, a schedular rating for psychiatric disorders is not necessarily limited to the enumerated symptoms in the general rating formula, and no relevant symptoms have been excluded in the Board’s analysis. Thus, the Veteran’s symptoms are not so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran’s disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a total rating based on individual unemployability, due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, however, the record does not suggest, particularly given the Veteran’s employment in 2017 and her volunteer work, and she does not allege, that her service-connected acquired psychiatric disability renders her unemployable. Thus, Rice is inapplicable in this case. By virtue of the foregoing, a rating in excess of 30 percent is not warranted for the period on appeal. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Crosnicker, Associate Counsel