Citation Nr: 18146424 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-27 619 DATE: November 1, 2018 ORDER Entitlement to an increased 50 percent rating for depressive disorder, previously rated as a mood disorder prior to October 15, 2013 is granted. Entitlement to an increased rating in excess of 50 percent for depressive disorder, previously rated as a mood disorder prior to October 15, 2013 is denied. FINDING OF FACT Prior to October 15, 2013, the Veteran’s depressive disorder, previously rated as a mood disorder was manifested by occupational and social impairment with reduced reliability and productivity due to symptoms such as depressed mood, anxiety, panic attacks, difficulty sleeping, irritability, isolating and avoidant behaviors, anger, trouble concentrating, memory difficulties and decreased motivation, but not by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Prior to October 15, 2013, the Veteran’s depressive disorder previously rated as a mood disorder was 50 percent disabling. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.130 Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force as a munitions systems specialist from March 1988 to March 1992. Increased rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, staged ratings are not warranted. Entitlement to an increased rating in excess of 30 percent for depressive disorder previously rated as a mood disorder prior to October 15,2013 The Veteran contends that he is entitled to an increased rating for his service connected depressive disorder previously rated as a mood disorder. Prior to October 15, 2013 the Veteran’s service connected depressive disorder has been rated as 30 percent disabling. From October 15, 2013 forward, the Veteran’s depressive disorder has been rating as 100 percent disabling, and this period is not on appeal. Herein, the Board finds that a 50 percent rating is warranted for the entire period on appeal. The Board finds that based on the evidence of record the preponderance of the evidence is against finding that a rating in excess of 50 percent for the Veteran’s depressive disorder, previously rated as a mood disorder is warranted. The Veteran’s depressive disorder is rated using the general formula for mental disorders (general formula). The Board notes that the Veteran’s depressive disorder was previously rated as a mood disorder and has also been claimed as anxiety, sleep disturbance and substance dependence throughout the period on appeal, the Board will consider the entirety of the Veteran’s symptomatology as discussed below. Under that formula, 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, 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 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. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. Importantly in this case, effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-V). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran’s claim was pending before the AOJ on August 4, 2014, a diagnosis and analysis of the Veteran’s current severity of his PTSD must conform to DSM-V. See 38 C.F.R. § 4.125(a). However, as the period on appeal occurred prior to August 2014, the file contains VA mental health examinations performed prior to August 2014 when DSM-IV was the medical and regulatory standard and was appropriate for use by the examiners at those times. As there is no information to the contrary, the Board will presume that earlier VA examiners appropriately utilized the diagnostic standard in effect at the time of their examinations. Further, the symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013) the Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Board finds that during this period on appeal the Veteran’s depressive disorder approximated a 50 percent rating. The evidence of record shows that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported symptoms including depressed mood, anxiety, panic attacks, difficulty sleeping, irritability, isolating and avoidant behaviors, anger, trouble concentrating, memory difficulties and decreased motivation. He reported a decreased interest in leisure and social activities and difficulty leaving his house. Additionally, the Veteran reported during the appeal period living separately from his wife due to his ongoing symptoms. The Veteran reported avoidance and isolating behaviors at work and home. The Veteran was afforded a VA mental disorders examination in May 2011. The examiner noted an occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks due to his mental disorder signs and symptoms but that he generally had satisfactory functioning. Symptoms reported ongoing depression, anxiety, mild memory problems and panic attacks. On the mental status examination, the Veteran was neatly groomed and appropriately dressed, with a normal affect, oriented to person, time and place. His thought process and content was normal with normal judgment and insight. He denied hallucinations/delusions, suicidal and homicidal ideations. The Veteran reported his symptoms had impacted his functioning at work, and that he is no longer as good of a manager as he was before due to his difficulty interacting with others. The examiner noted the Veteran reported a close relationship with his mother and a good relationship with his girlfriend but in the past his mental health symptoms have interfered with his relationships with friends and his prior spouse. The VA clinician assessed the Veteran’s overall level of disability presenting with moderate to mild symptoms. Lay statements from the Veteran’s coworkers during this period note decreased work productivity, changes in mood and increased conflicts. Coworkers note the Veteran was previously a well-regarded supervisor at the U.S. Postal Service and recently had difficulty managing the stress of the position and interacting appropriately with employees and coworkers noticed increased anger and irritability. Coworkers noted the Veteran had become more withdrawn, less sociable and struggled managing the ongoing job stressors. Personnel records and evaluations note the Veteran was previously awarded bonuses and commendations for his outstanding service and then more recently received disciplinary action for sleeping at work. VA, private treatment records and SSA records have been associated with the claims file. Treatment records note ongoing medication management and therapy. The Veteran has reported regularly attending NA (narcotics anonymous) meetings. VA and private treatment records note increased anxiety and worry, increased stress and sleep difficulty. In particular, private treatment records note increased worry and occasional panic attacks related to work. Private treatment records note on mental status exams the Veteran was consistently oriented to time, place and situation, moderately groomed and presented with pressured speech and tangential thought processes. Private treatment records note the Veteran was regularly seen for counseling to help manage increasing anxiety and depression relating to work stress, and severe sleep disturbances which was exacerbated by his work schedule. The Veteran’s private therapist reported a lack of motivation to complete important tasks including engaging in leisure and social activities. The Veteran’s private therapist reported in February 2013 the Veteran began experiencing panic attacks with increasing intensity and frequency when preparing to go to work. A private assessment in April 2013 noted that the Veteran had been working as a senior manager with the Postal Service and remained currently employed although he reported increased difficulty at work including disciplinary actions, difficulty focusing and concentrating. The therapist noted that the Veteran was struggling to avoid relapsing after two periods of opioid addition from medications for his service-connected knee disabilities. VA treatment records note on mental status examinations the Veteran consistently reported a depressed mood, and presented with proper hygiene and appearance, normal speech and affect, structured thoughts, good insight and judgment and denied suicidal or homicidal ideations. VA treatment records note moderate symptoms. Based on a review of the evidence of record the Board finds that a 50 percent rating, but no higher is warranted for this period on appeal. During this period on appeal the Veteran experienced symptoms including depressed mood, anxiety, panic attacks, difficulty sleeping, irritability, anger, trouble concentrating, memory difficulties, isolating, avoidant behaviors and decreased motivation causing occupational and social impairment with reduced reliability and productivity. These symptoms are contemplated by the 50 percent rating granted herein. The Board recognizes that some of the Veteran’s reported symptomology approximates the listed criteria for an evaluation in excess of 50 percent. The Board also notes that some of the Veteran’s symptoms have slightly worsened during the period on appeal. However, the overall nature, frequency, and severity of his signs and symptoms have not risen to the level of an increased 70 percent evaluation. The Veteran’s representative in June 2018 correspondence reported that a higher rating for this period on appeal was warranted due to private treatment records noting significant occupational and social impairments and ongoing daily challenges. The representative alleged that an increased 100 percent rating was warranted for the period on appeal alleging total occupational and social impairment. However, VA benefits may not be granted based on speculative opinions. Rather, opinions must be made by competent professionals and be based on a rationale that is clear to the Board. The Veteran’s representative is not competent to provide a medical opinion, which it has attempted to do in its argument. The Veteran’s representative has attempted to provide an opinion alleging total occupational and social impairment during the period on appeal. Furthermore, even if the representative was found to be a competent source of opinion, evidence favorable to a veteran’s claim that does little more than suggest a possibility that his illnesses might have caused increased mental health symptomology and impairment which would be addressed by the granting of an increased rating during this period is insufficient. Lastly, the benefit of the doubt rule is for application when the evidence is in equipoise, which occurs only when there is an approximate balance between the positive and negative evidence. 38 C.F.R. § 3.102. That evidence must be both competent and credible. Here, there is no such balance of evidence. During this period on appeal, the Veteran experienced occupational and social impairment with reduced reliability and productivity due to symptoms such as anxiety, depressed mood, panic attacks, difficulty sleeping, irritability, anger, trouble concentrating, memory difficulties, isolating and avoidant behaviors and decreased motivation. In addition, the Veteran consistently noted difficulty establishing and maintaining effective work and social relationships. The Veteran’s symptoms during this period are all typical and considered in the assignment of a 50 percent rating. The Veteran’s depressive disorder has not been characterized by occupational and social impairment with deficiencies in most areas such as work, school, family relationships, judgment, thinking or moods. During this period on appeal the Veteran continued working at the U.S. Postal Service and continued to maintain a good relationship with his mother and sister. During this period, the Veteran reported that him and his wife were no longer residing together but remained in communication. While increased symptomatology was noted including panic attacks and increased difficulties at work there was no indication of suicidal ideations, obsessional rituals, illogical, obscure or irrelevant speech, impaired impulse control and/or spatial disorientation. Additionally, treatment records note that the Veteran largely maintained his personal appearance and hygiene and was able to function independently. The Veteran did report difficulty maintaining his work and social relationships during this period with increased difficulty maintaining work relationships, however he continued to maintain relationships with his mother and his spouse. While, the Veteran had increased difficulties at work he did consistently maintain employment during this period. The evidence of record shows that the Veteran was able to perform activities of daily living and his overall disability picture is not one of occupational and social impairment with deficiencies in most areas. The evidence of record supports a change in the severity of the Veteran’s symptomology from 2011 through October 2013 supported by VA and private treatment records and the Veteran’s and associated lay statements and such is reflected by the granting of a 50 percent rating herein. The Veteran’s overall impairment caused by his depressive disorder and associated symptomology more nearly approximates occupational and social impairment with reduced reliability and productivity. As such, the evidence of record is against a finding that the Veteran has demonstrated occupational and social impairment with deficiencies in most areas, which would warrant a 70 percent rating for this period. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against finding an increased rating in excess of 50 percent for the Veteran’s service connected depressive disorder is warranted. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, an increased 50 percent rating, but no higher is granted. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Kardian