Citation Nr: 18147250 Decision Date: 11/02/18 Archive Date: 11/02/18 DOCKET NO. 17-34 834 DATE: November 2, 2018 ORDER The June 15, 2018 Board decision is VACATED to the extent that it granted an initial increased evaluation of 70 percent, but no higher, for depressive disorder with history of dysthymic disorder. Entitlement to an initial increased evaluation of 100 percent for depressive disorder with history of dysthymic disorder is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. In its June 15, 2018 decision, the Board failed to consider the appropriate laws and regulations, and as such, the Veteran was denied due process of law. 2. The Veteran’s depressive disorder with history of dysthymic disorder is manifested by pathological behavior that has rendered him so adversely affected that he is demonstrably unable to obtain or retain employment. CONCLUSIONS OF LAW 1. The criteria for a motion of partial vacatur of the Board’s June 15, 2018 decision have been met. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). 2. The criteria for increased evaluation of 100 percent for depressive disorder with history of dysthymic disorder have been met. 38 U.S.C. §§ 1155, 5110 (West 2002); 38 C.F.R. §§ 3.400, 4.7, 4.16(c), 4.130, 4.132, Diagnostic Code 9411 (1996). MOTION TO VACATE In a June 15, 2018 decision, the Board granted the Veteran an increased initial rating of 70 percent, but no higher, for his service-connected depressive disorder with history of dysthymic disorder. However, the Veteran, through his attorney, has filed a Motion for Reconsideration and moved the Board to vacate that decision on the grounds that the Veteran was denied due process. The Veteran asserts that due process was denied because the Board in its decision failed to consider applicable laws and regulations pertinent in 1995, the date of claim in this case. The Board of Veterans’ Appeals (Board) may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board’s own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). After review and consideration of the Veteran’s Motion and argument, the Board grants the Veteran’s Motion for Reconsideration, and vacates the June 15, 2018 Board decision to the extent that it granted an initial increased evaluation of 70 percent, but no higher, for depressive disorder with history of dysthymic disorder. 38 U.S.C. § 7104(a) (2012); 38 C.F.R. § 20.904 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from February 1962 to April 1965. He also had reserve service from 1977 to 1983 with periods of active duty for training (ACDUTRA) and inactive duty training (INACDUTRA). This matter comes before the Board of Veterans’ Appeals (Board) on appeal from multiple rating decisions of Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in June 2015, and in a June 2018 decision the Board granted the Veteran an increased initial rating of 70 percent, but no higher, for his service-connected depressive disorder with history of dysthymic disorder. However, the Veteran, through his attorney, has filed a Motion for Reconsideration and moved the Board to vacate that decision on the grounds that the Veteran was denied due process. As discussed above, the Board vacated the June 2018 Board decision as it related to the claim for increased rating for his service-connected depressive disorder with history of dysthymic disorder. The VCAA describes VA’s duties to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). As discussed in more detail below, sufficient evidence is of record to grant the Veteran’s claim. Thus, any errors in complying with the notice or assistance requirements with respect to this matter are moot. Increased Rating Service-connected disabilities are rated in accordance with VA’s Schedule for Rating Disabilities (Schedule). Ratings are based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon a lack of usefulness in self-support. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In addition, the evaluation of the same disability under various diagnoses, and the evaluation of the same manifestations under different diagnoses, are to be avoided. C.F.R. § 4.14. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Furthermore, medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. The Schedule directs that in evaluating the severity of mental disorders under the diagnostic criteria consideration should 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. Ratings shall be based on all the evidence of record as it bears on social and industrial impairment rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. Although social impairment is crucial in determining the level of overall disability, an evaluation may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126. Effective November 7, 1996, during the pendency of this appeal, the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4, was amended with regard to rating mental disabilities. Schedule for Rating Disabilities; Mental Disorders, 61 Fed. Reg. 52695 (1996) (to be codified at 38 C.F.R. §§ 4.125-4.130). Because the veteran’s claim was filed before the regulatory change occurred, he is entitled to application of the version most favorable to him. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). Prior to implementation of the revised regulations, the General Rating Formula for Psychoneurotic disorders provided for a 100 percent evaluation when there are totally incapacitating psychoneurotic symptoms bordering on gross repudiation of reality with disturbed thought or behavioral processes associated with almost all daily activities such as fantasy, confusion, panic and explosions of aggressive energy resulting in profound retreat from mature behavior; or when the attitudes of all contacts except the most intimate are so adversely affected as to result in virtual isolation in the community; or when the veteran is demonstrably unable to obtain or retain employment. See Johnson v. Brown, 7 Vet. App. 95, 97-99 (1994). A 70 percent evaluation is assigned when the veteran’s ability to establish and maintain effective or favorable relationships with people is severely impaired and the psychoneurotic symptoms are of such severity and persistence that there is severe impairment in the ability to obtain or retain employment. As revised effective in November 1996, the General Rating Formula for Mental Disorders provides a 100 percent rating 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; memory loss for name of close relatives, own occupation, or own name. A 70 percent 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 intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as irritability, with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or work-like setting); inability to establish and maintain effective relationships. The Veteran contends that his depressive disorder with history of dysthymic disorder warrants an increased initial rating of 100 percent. Specifically, the Veteran asserts that a total disability evaluation is warranted under the diagnostic code applicable prior to November 1996. In this case, June 1995, November 1995, and January 1996 correspondences, note sleep loss and memory problems. March 1994 Social Security Administration (SSA) records include a psychiatric examination and note feelings of suicidal ideations. Moreover, the examiner found that the Veteran could not sustain a competitive level of productivity due to factors related to his dysthymic disorder. The Veteran was afforded a VA examination in March 1996. The Veteran reported trouble sleeping, problems in crowds, self-isolation, depression, aggravation, and irritability. The Veteran reported an attempted suicide in 1993. Upon examination, the examiner noted poor concentration, constricted affect, and extreme aggravation as a result of his physical pain, but found the Veteran to be void of delusions and hallucinations. The Veteran did not report suicidal ideations at the time of the examination. The examiner reported that the Veteran suffered from bouts of depression and that his major problems was his sleep disorder. The Veteran was assigned a GAF score of 50. A July 2009 VA treatment record reports depression and suicidal ideations as a result of his pain. The Veteran reported an attempted suicide in 1999. A July 2009 VA treatment record also indicates that he tried to hang himself with a rope in 1999. An August 2009 VA treatment record reports no suicidal ideations and no feelings of depression, but noted anxiety. An August 2009 VA treatment record also indicates that the Veteran was inpatient for one week in July 2009 for anxiety and depression related to his chronic pain. The Veteran was afforded a VA examination in September 2011. The examiner found 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 VA examination reports memory loss, anxiety, and depressed mood. The Veteran reported that he tried to commit suicide in the past, by taking pills and by trying to shoot himself. However, at the time of the examination the Veteran did not report suicidal ideations. The Veteran reported sleep problems. An August 2012 private treatment record notes feelings of anger and depression. The Veteran was afforded a VA examination in February 2014. The examiner reported depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, and suicidal ideations. The Veteran did not report delusions or illusions. However, the Veteran continued to note sleep issues, anxiety, restlessness, helplessness, isolation, depressed mood, low energy, and suicidal ideations. The Veteran was found to have occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation. The Board has considered all of the evidence of record and finds that the Veteran’s disability picture most nearly approximates the criteria for an increased evaluation of 100 percent under the rating criteria that was in effect prior to November 1996. Given the evidence of record, the Veteran’s symptomatology has included chronic anxiety, sleep impairment, suicidal ideations, intermittent hospitalizations, memory loss, and self-isolation. It is also noted that the Veteran has been shown to have a GAF score of 50. GAF scores ranging from 41 to 50 reflect serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Essentially, the Veteran’s level of symptomatology from depressive disorder with history of dysthymic disorder demonstrates severe social and industrial impairment to a degree that would disrupt both social and occupational functioning. This assessment, coupled with the Veteran’s documented inability to retain steady employment or come in contact with the public, clearly approximates the requisite symptoms required for a 100 percent rating under the old schedular rating criteria in effect prior to November 1996. The Veteran’s depressive disorder with history of dysthymic disorder is manifested by pathological behavior, such as self-isolation and anxiety, that has rendered the attitudes of all contacts except the most intimate so adversely affected as to result in virtual isolation in the community. Moreover, given that the evidence of record demonstrates that the Veteran is severely impaired in his ability to maintain himself in competitive employment, and the Veteran is demonstrably unable to obtain or retain employment. See March 1994 Social Security Administration (SSA) records (finding that the Veteran could not sustain a competitive level of productivity due to factors related to his dysthymic disorder). (Continued on the next page)   In summary, when all the evidence of record is reviewed, the Board concludes that the Veteran’s depressive disorder with history of dysthymic disorder more nearly approximates a schedular 100 percent evaluation, under the criteria in effect prior to November 7, 1996. See 38 C.F.R. § 4.7 (2004). The evidence supports the assignment of a schedular 100 percent schedular disability evaluation. 38 C.F.R. § 4.130, Diagnostic Code 9411 (1996) Karnas v. Derwinski, 1 Vet. App. 308 (1991). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Tunis, Associate Counsel