Citation Nr: 18142046 Decision Date: 10/12/18 Archive Date: 10/12/18 DOCKET NO. 13-25 110A DATE: October 12, 2018 ORDER Entitlement to a higher initial rating for depressive disorder in excess of 30 percent for the period prior to January 28, 2016, and in excess of 50 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to January 28, 2016, the Veteran’s depressive disorder has not been shown to be productive of occupational and social impairment with reduced reliability and productivity. 2. Beginning January 28, 2016, the Veteran’s depressive disorder has not been shown to be productive of occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial rating in excess of 30 percent for depressive disorder, for the period prior to January 28, 2016, and in excess of 50 percent thereafter have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2017). The Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Depressive disorder is evaluated under the general rating formula for mental disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under this general rating formula, a 30 percent rating is warranted where the evidence shows 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). 38 C.F.R. § 4.130, Diagnostic Code 9434. A 50 percent rating is warranted when the evidence shows 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; difficulty in establishing effective work and social relationships. Id. 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 worklike setting); inability to establish and maintain effective relationships warrants a 70 percent rating. Id. 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; memory loss for names of close relatives, own occupation, or own name warrants a 100 percent rating. Id. Global Assessment of Functioning (GAF) scores are a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) [citing the American Psychiatric Association’s DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32]. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful relationships. See 38 C.F.R. § 4.130 (incorporating by reference the VA’s adoption of the DSM-IV for rating purposes). Lower numbers on the GAF scale reflect more severe symptoms; higher number reflects less severe symptoms. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are 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). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013) (also explaining that VA intended the General Rating Formula to provide a regulatory framework for placing veterans on the disability spectrum based upon their objectively observable symptoms). In July 2012, the Veteran submitted a claim for service connection for depression, noting that he feels irritable and depressed. Prior to that time, a February 2012 psychological examination submitted in connection with the Veteran’s application for Social Security Administration disability benefits shows that a psychologist diagnosed him with pain disorder associated with psychological factors. She noted that the Veteran’s symptoms included frustration, irritability and insomnia related to back pain, and assigned a GAF score of 61. In December 2012, the Veteran underwent a comprehensive psychiatric evaluation in connection with his application for Social Security Administration disability benefits. The Veteran reported feeling depressed ever since he injured his back for the first time in 1985 and that his depression got worse in 2009 when he injured his back for the fourth time. He reported his depressive symptoms including insomnia, increased appetite with weight gain, low energy, sadness, and decreased concentration. He reported that his ability to work has not been affected by these symptoms but rather he is depressed because he is not able to work due to his back pain. Except for depressed mood and occasional feelings of worthlessness, no abnormalities were noted on mental status examination. The examiner diagnosed mood disorder secondary to general medical condition and cannabis abuse allegedly in full, sustained remission and assigned a GAF score of 62. The Veteran underwent a VA examination in February 2013. He reported that he lived with his wife of 34 years but reported some marital conflicts and that he keeps in contact with one child. He reported some friends but no one close. He stated that he spends his free time lying in bed due to his chronic pain. He would otherwise prefer to be traveling but is unable to due to his pain. He is not currently involved in community activities. He stopped working in 2009 due to repeated back injuries on the job. The examiner noted symptoms including depressed mood, chronic sleep impairment, and disturbances in motivation and mood, as well as chronic insomnia due to pain and difficulty obtaining a comfortable position in bed. The examiner diagnosed depressive disorder which he assessed as causing 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. The examiner assigned a GAF score of 60. In April 2013, the Veteran was awarded Social Security disability benefits based on a back disorder only. In a September 2013 notice of disagreement, the representative argued that an increased rating was warranted because the Veteran stays in bed for most of the day due to his back pain and as a result is unable to participate in most activities that he used to enjoy and because the Veteran has continuous depression and does not want to be around anyone. The Veteran underwent another VA examination in January 2016. The Veteran reported that he and his wife recently moved to a new home and was upset because he had to pay more than their last home. His daughter recently moved to Virginia and bought a house there and so he does not have as frequent contact with her and their grandchild. He reported having no friends and denied any recreational outlets except to use the internet. He mainly leaves the house to go to the grocery store. The Veteran reported that since the last VA examination three years ago, he believed that his depression had stayed the same. He reported that he varies from feeling “bummed out” to feeling “pissed off” and that he previously had a circle of friends but he eventually lost them due to his irritability and tendency to want to argue. His mother also decreased her contact with him due to his irritability. He reported that his wife would probably leave if it were not for financial needs and he indicated some ongoing tension between them as she feels he is not trying hard enough to manage his pain and be more active. He reported that he also has ongoing insomnia most nights: it takes one to two hours to fall asleep, and then he awakens repeatedly throughout the night with difficulty falling asleep. He denied suicidal thoughts per se but also admitted to essentially not caring if he dies anytime soon; he denied any suicide plan or intent. The examiner observed that the Veteran arrived on time, appeared to have good grooming and hygiene, demonstrated no evidence of a thought disorder, cognitive deficits, or gross memory impairments. He made appropriate eye contact and was cooperative and alert and oriented during the examination. His affect appeared to be mildly dysthymic. His symptom report did not suggest current manic/hypomanic symptoms or psychotic symptoms and he demonstrated no behaviors consistent with these symptoms during the examination. The examiner noted symptoms including depressed mood, chronic sleep impairment, disturbances in motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The examiner diagnosed depressive disorder which she assessed as causing 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. Private psychological treatment records from March 2017 through August 2017 show that the Veteran reported poor sleep, anger, irritability, and poor frustration tolerance. GAF scores were consistently shown to be 57. Upon review of the evidence, the Board finds that entitlement to a higher initial rating for depressive disorder is not warranted. The evidence shows that throughout the period on appeal, the Veteran’s depressive disorder has generally been manifested by symptoms of irritability, anger, chronic sleep impairment, and depressed mood. Although this has been associated with some marital conflict, a lack of friends and a lack of engagement in community or recreational activities, it has resulted in minimal occupational impact. In this regard, at the December 2012 examination, the Veteran reported that his work had not been affected by his depressive disorder but rather he was depressed because he could not work due to his back disability. At the February 2013 examination, he reported that he stopped working in 2009 due to his back disability which is supported by the Social Security Administration’s finding that he was disabled as a result of his back disorder only. Indeed, the February 2013 VA examiner assessed the overall occupational impact as resulting in occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks although generally functioning satisfactorily; the January 2016 VA examiner made the same finding and at that examination the Veteran reported that his depressive disorder had stayed the same since the 2013 examination. The VA examiners’ findings appear consistent with the GAF scores during this period were shown to be between 57 and 62, reflecting the less-severe range of moderate symptoms/more-severe range of mild symptoms. In sum, the Board finds that for the period prior to January 28, 2016, the Veteran’s depressive disorder has not demonstrated symptoms of such severity, frequency or duration as to equate with occupational and social impairment with reduced reliability and productivity for the reasons stated above. With regard to the listed symptoms, while there was some evidence of disturbances of motivation and mood and difficulty in establishing and maintaining effective social relationships, the Veteran has not exhibited flattened; 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; difficulty in establishing and maintaining effective work relationships; or other symptoms of similar severity, frequency, and duration. Accordingly, the Board finds that for the period prior to January 28, 2016, a rating in excess of 30 percent is not warranted. Similarly, for the period beginning January 28, 2016, the Veteran’s depressive disorder has not demonstrated symptoms of such severity, frequency or duration as to equate with occupational and social impairment with deficiencies in most areas. While there was difficulty in adapting to stressful circumstances and frequent depression, the Veteran has not exhibited suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic affecting the ability to function independently, appropriately and effectively; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; or other symptoms of similar severity, frequency, and duration. Accordingly, the Board finds that for the period beginning January 28, 2016, a rating in excess of 50 percent is not warranted. In sum, a higher initial rating for the Veteran’s depressive disorder is not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of a higher rating, that doctrine is not applicable. 38 U.S.C. § 5107(b). GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Matthew Schlickenmaier, Counsel