Citation Nr: 18144796 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 15-06 270 DATE: October 25, 2018 ORDER Entitlement to a rating greater than 30 percent for depressive disorder, not otherwise specified (NOS) is denied. FINDING OF FACT At no time during the appeal period has the Veteran’s depressive disorder been manifested by reduced reliability and productivity or difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for depressive disorder, NOS have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1967 to February 1971. Entitlement to a rating greater than 30 percent for depressive disorder, NOS. The Veteran’s psychiatric disability was initially rated as 10 percent disabling from April 22, 2011. He filed a claim for increased rating in April 2013. In the January 2014 rating action on appeal, the rating was increased to 30 percent disabling, effective April 29, 2013. The Board finds that the criteria for an increased rating have not been met. 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. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of examination. It is the responsibility of the rating specialist to interpret reports of examinations in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. The Veteran’s depressive disorder, not otherwise specified (NOS), is evaluated under the General Rating for Mental Disorders as listed in 38 C.F.R. § 4.130 Schedule of Ratings-Mental Disorders, Diagnostic Code (DC) 9434, Major Depressive Disorder. Under DC 9434, a rating of 50 percent is assignable 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 (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 and maintaining effective work and social relationships. A 30 percent rating is assignable for 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). A 10 percent rating is assignable for 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, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, Diagnostic Code 9434. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442; see also Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Turning to the evidence of record, a VA treatment record from September 2012 documented that the Veteran was having symptoms of anxiety, depression, intrusive thoughts/memories and restlessness. The practitioner also reported that the Veteran was having racing thoughts, decreased level of function socially, in relationships secondary, to preoccupation with shame and guilt and some anhedonia. In connection with the current claim, the Veteran was given a VA examination in December 2013. The examiner noted the diagnosis of depressive disorder, NOS, and characterized the Veteran’s related occupational and social impairment as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner listed the Veteran’s specific symptoms as, depressed mood, chronic sleep impairment, disturbance of motivation and mood. The examiner noted that the Veteran had retired “three years prior” and was currently working part-time at a golf course. VA treatment records from October 2014, June 2015 and October 2015 reflect that the Veteran’s depression “comes and goes” and that his depression is in partial remission. The notes do states that the Veteran reports that he has less good days, and that “he doesn’t feel totally good.” In February 2015, the Veteran submitted a statement that he experiences both long and short-term memory problems, experiences anger without provocation and he wakes up crying. The Veteran also stated that his county’s veterans service representative sent a note to VA stating his speech had a “flattened affect.” In March 2016, the Veteran was given a VA examination. The examiner diagnosed the Veteran with major depressive disorder, recurrent. The examiner summarized the Veteran’s occupational and social impairment as 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, or; symptoms controlled by medication. The examiner listed the Veteran’s specific symptoms as, chronic sleep impairment, mild memory loss and flattened affect. The examiner noted that the Veteran had retired in 2012, but had no emotional of mental symptoms associated with occupational problems. He was never not able to go to work because of emotional or mental symptoms. After a review of the evidence, the Board finds that a disability rating greater than 30 percent is not warranted. Both the December 2013 and the March 2016 VA examination opinions summarized the Veteran’s occupational and social impairment as 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, or; symptoms controlled by medication. Normally, this evaluation would fall under the criteria for a 10 percent disability rating. 38 C.F.R. § 4.130, Diagnostic Code 9434. However, it is noted that the December 2013 examiner reported the Veteran has the additional symptoms of depressed mood and chronic sleep impairment which meet the criteria for a 30 percent disability rating. Although, the March 2016 VA examiner identified the Veteran as having the symptom of a flattened affect, which is one symptom for a 50 percent rating, none of the Veteran’s other symptoms meet the criteria for a 50 percent disability rating. The Veteran’s symptoms do not equate in severity, frequency, or duration to occupational and social impairment with reduced reliability and productivity. Consequently, a higher 50 percent rating is not warranted, since the Veteran’s symptoms do not manifest circumstantial, circumlocutory, or stereotyped speech, difficulty in establishing and maintaining effective work and social relationships, long-term memory impairment, difficulty in understanding complex commands. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In summary, the competent and credible evidence is against assignment of a disability rating greater than 30 percent. M.E. LARKIN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Perkins, Michael