Citation Nr: 18144951 Decision Date: 10/25/18 Archive Date: 10/25/18 DOCKET NO. 16-48 594 DATE: October 25, 2018 ORDER An initial rating of 50 percent, but no higher, for major depressive disorder (MDD) with anxiety is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s MDD with anxiety has been characterized by occupational and social impairment with reduced reliability and productivity manifested by depression, anxiety, moodiness, chronic sleep impairment, panic attacks, withdrawal from people, irritability, hyperarousal symptoms, blunted affect, and agoraphobia. 2. The Veteran’s MDD with anxiety has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for a 50 percent rating, but no higher, for MDD with anxiety are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1974 to January 1983. This matter comes to the Board of Veterans’ Appeals (Board) from the January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. Laws and Analysis for MDD Disability Rating Disability ratings are determined by comparing a veteran’s present symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran is in receipt of a 30 percent disability rating for MDD and anxiety disorder under Diagnostic Code 9434 for the rating period on appeal. A 30 percent rating is assigned when a mood disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and mild memory loss. 38 C.F.R. § 4.130. A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent disability rating is assigned for 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 that is 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. Id. A 100 percent disability rating is assigned for 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; and memory loss for names of close relatives, or for the veteran’s own occupation or name. Id. In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so). In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5). See Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned. See Mauerhan, 16 Vet. App. 436. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV). The amendments replace those references with references to the recently updated DSM-5. As the Veteran’s claim was certified to the Board after August 4, 2014, the Board will use the recently updated DSM-5. See 79 Fed. Reg. 45,093-02 (August 4, 2014). As relevant to this case, the DSM-5 states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. The Board recognizes the Court’s holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores; however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board will afford the GAF scores mentioned in the record no probative value. See also Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017) (holding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim). The Veteran maintains that the service-connected MDD and anxiety disorder disability warrants a disability rating in excess of 30 percent for the rating period on appeal. The relevant evidence of record includes a November 2014 VA psychiatric examination report. The examiner diagnosed recurrent MDD that was of “moderate severity.” During the evaluation, the Veteran reported that he had retired in 2013 from the last job as a supervisor at a plant. Current symptoms were reported or noted to include depressed mood, chronic sleep impairment, disturbance of motivation and mood, loss of appetite, poor energy, lack of enjoyment in activities, and decreased concentration. The Veteran denied suicidal thoughts. Upon mental status examination, the Veteran’s mood was depressed and affect was restricted. The evidence also includes private treatment records from Dr. Jabbour that indicate symptoms of depression, anxiety, moodiness, withdrawal from people, irritability, hyperarousal symptoms, blunted affect, panic attacks, and agoraphobia. The Veteran denied auditory, visual, or tactile hallucinations, and denied any suicidal or homicidal ideations, paranoia, or delusions. The Veteran also reported having a few acquaintances and stated that his relationship with his children was “great.” The Veteran was most recently afforded a VA mental disorders examination in August 2016. During the evaluation, the Veteran stated that he had been married for eight years and had one step-child in the home. He reported being socially withdrawn from the marriage and his family. The Veteran further indicated that he occasionally lost his temper, he was unemployed as of 2013 as he was unable to continue working due to knee problems. Current symptoms were noted to include depressed mood, anxiety, panic attacks, chronic sleep impairment, and disturbance of motivation and mood. The examiner further assessed that the Veteran’s depressive symptoms likely limited motivation and impacted concentration, and that anxiety symptoms also impacted the ability to focus and attend to information. The Veteran’s occupational functioning was noted to be “at least moderately impacted by his mental health symptoms.” Upon review of all the evidence of record, both lay and medical, the Board finds that the MDD disability more nearly approximates a 50 percent rating for the entire initial rating period on appeal. The Board finds that the Veteran’s symptoms have remained relatively consistent throughout the appeal period, including ongoing depression, anxiety, irritability, some social isolation, diminished interest or participation in activities, disturbance of motivation and mood, and occasional panic attacks, which have been consistently noted to be “moderate.” The Veteran’s occupational functioning was assessed to be “at least moderately impacted by his mental health symptoms.” See November 2014 and August 2016 VA examination reports. For these reasons, resolving reasonable doubt in the Veteran’s favor, the Board finds that a 50 percent rating for the Veteran’s MDD disability is warranted for the entire initial rating period on appeal. 38 C.F.R. §§ 4.3, 4.7. (Continued on the next page)   The Board next finds that, for the entire initial rating period on appeal, the MDD disability has not more nearly approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The weight of the evidence demonstrates that the Veteran’s overall psychiatric disability picture is adequately contemplated by the 50 percent rating currently assigned. The sleep impairment and occasional panic attacks are symptoms specifically contemplated under the criteria for a 30 percent rating. The restricted affect, irritability, and disturbance of motivation and mood are contemplated in the 50 percent rating criteria. The Veteran has stated that he is married and has a good relationship with his children. He has also indicated that his unemployment was due, in part, to his knee disabilities. See August 2016 VA examination report; see also April 2014 private treatment record from Dr. Jabbour. For these reasons, the Board finds that a 50 percent rating, but no higher, for MDD with anxiety is warranted for the entire initial rating period on appeal. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Casadei, Counsel