Citation Nr: 18142578 Decision Date: 10/17/18 Archive Date: 10/16/18 DOCKET NO. 16-34 909 DATE: October 17, 2018 ORDER Entitlement to an initial rating of 70 percent, and no higher, from May 29, 2014 to the present, is granted for the service-connected for major depressive disorder, recurrent, severe and body dysmorphic disorder. FINDING OF FACT Giving the Veteran the benefit of the doubt, throughout the entire timeframe on appeal, the Veteran’s service-connected psychiatric disorder was manifested by symptoms consistent with occupational and social impairment involving deficiencies in most areas, including work, family relations, judgment, concentration, and mood. CONCLUSION OF LAW Resolving doubt in favor of the Veteran, the criteria for an initial rating of 70 percent, for the Veteran’s service connected psychiatric disorder, but not higher, have been met effective May 29, 2014. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 2000 to May 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a June 2014 rating decision of the Providence, Rhode Island, Regional Office (RO) of the Department of Veterans Affairs (VA). By June 2016 rating decision, the RO increased the Veteran’s initial rating from 50 to 70 percent, effective April 12, 2016. Although this was a partial grant of the benefit sought, the Board notes that the Veteran has indicated continued disagreement with the rating assigned and the Veteran has not been granted the maximum benefit allowed; thus, the claim is still active. See AB v. Brown, 6 Vet. App. 35, 38 (1993). By August 2016 rating decision, the RO granted entitlement to TDIU effective May 29, 2014. Therefore, entitlement to TDIU is not on appeal as the benefit is already granted in full. Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. 1. Entitlement to an initial rating in excess of 50 percent effective May 29, 2014 and 70 percent effective April 12, 2016 for major depressive disorder, recurrent, severe and body dysmorphic disorder. Veterans Claims Assistance Act of 2000 (VCAA) A VCAA letter dated June 2013 fully satisfied the duty to notify provisions. See 38 U.S.C. § 5103 (a) (2012); 38 C.F.R. § 3.159 (b)(1) (2017). The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The letter informed her that additional information or evidence was needed to support her claims, and asked her to send the information or evidence to VA. The letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes that VA’s duty to assist has been satisfied. The Veteran’s service treatment records and VA medical records are in the Veteran’s claim file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The United States Court of Appeals for Veterans Claims (Court) has also held that VA’s statutory duty to assist the Veteran includes the duty to conduct a thorough and contemporaneous examination so that the evaluation of the claimed disability will be a fully informed one. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Where the evidence of record does not reflect the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2017). The RO provided the Veteran an appropriate VA examination, as described below. The VA examination report is thorough and supported by the other treatment evidence of record. The Board concludes the examination report in this case is adequate upon which to base a decision. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Legal Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2017). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). Staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s psychiatric disorder is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9434 (2017), under the general rating formula for mental disorders under 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. Notably, the term “such as” in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation. Id. Accordingly, the evidence considered in determining the level of impairment under 38 C.F. R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a claimant’s disability that affect the level of occupational and social impairment. The pertinent provisions of 38 C.F.R. § 4.130 concerning the rating of psychiatric disabilities read in pertinent part as follows (See 38 C.F.R. § 4.130, Diagnostic Code 9434): 30 percent: 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). 50 percent: 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 establishing effective work and social relationships. 70 percent: 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); inability to establish and maintain effective relationships. 100 Percent: 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. Facts and Analysis While prior to the appeals period, the Board notes an August 2013 service treatment record, which states the Veteran had endured significant symptoms of depression for three months, including frequent thoughts of death. She had at times reported suicidal ideation with a plan. She reported decreased functioning at home, but that she was able to perform the duties of primary caregiver for her two children and that she enjoyed this role. Social Security Administration (SSA) records contain a May 2014 treatment note in which the Veteran reported struggling with low self-esteem and poor self-concept. The Veteran reported worrying excessively, crying daily and some struggle with thinking and concentrating. She reported worrying and feeling scared to the point of sometimes not leaving the house. SSA records also contain a January 2015 record stated that notwithstanding credible depression and anxiety, functional limitations due to psychological factors are not considered severe enough to be disabling, therefore, the Veteran was considered capable of work despite psychological impairment. The Veteran appeared for a VA examination in April 2016. The examiner found occupational and social impairment with deficiencies in most areas. The examiner noted depressed mood, anxiety, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss, flattened affect, difficulty understanding complex commands, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, obsessional rituals, intermittent inability to perform activities of daily living. The Veteran reported a positive relationship with her family. Giving the Veteran the benefit of the doubt, the Board finds that the record supports occupational and social impairment, with deficiencies in most areas, for the pendency of the appeal. The record supports that the Veteran suffers disruptions to her social life, work life, thinking, concentration and mood due to service-connected psychiatric disorder. Throughout the appeals period, serious psychiatric symptoms were recorded as those contemplated by the 70 percent rating. The record supports that the Veteran suffered consistently from severe depression, anxiety, and low self-esteem from May 29, 2014 to present, with symptoms to include suicidal ideation and mental stress preventing her at times from leaving the house. She struggled with work and household tasks due to service-connected major depressive disorder, recurrent, severe and body dysmorphic disorder. However, the record does not support that the Veteran suffers from total occupational and social impairment. She is not totally impaired socially. While the evidence supports that the Veteran’s relationship with her family is negatively impacted by her mental disorder, she maintains a strong family life and performs caregiver and household tasks to support her children and family. While the evidence supports that the Veteran’s work life is impaired by her psychiatric condition, January 2015 and April 2016 medical exams supported she is not unable to work due entirely to her service-connected psychiatric condition. Further, her symptoms are not sufficiently severe to match the 100 percent rating. While the Veteran has exhibited intermittent inability to perform activities of daily living, the Veteran has not exhibited gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Overall, the constellation of symptoms associated with the Veteran’s PTSD do not correspond to the assignment of a 100 percent schedular disability rating. By this decision, the Board is resolving any doubt in the Veteran’s favor to award an increased rating for disability due to PTSD to 70 percent over the entire appeal period, namely prior to April 12, 2016. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The competent evidence of record does not indicate that the Veteran’s symptomatology had worsened to a level more severe than 70 percent disabling at any point during this appeal period. See 38 C.F.R. § 4.1. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev