Citation Nr: 18148607 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-33 238 DATE: November 7, 2018 ORDER An initial rating in excess of 50 percent for unspecified anxiety disorder and unspecified depressive disorder is denied. FINDING OF FACT Throughout the period on appeal, the Veteran’s unspecified anxiety disorder and unspecified depressive disorder have been characterized by occupational and social impairment with reduced reliability and productivity; occupational and social impairment with deficiencies in most areas has not been shown. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for unspecified anxiety disorder and unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9413 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from January 1973 to August 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. VA treatment records were added to the claims file after the June 2016 statement of the case (SOC). In October 2018, the Veteran’s attorney waived initial consideration of that evidence by the agency of original jurisdiction (AOJ) and asked that the Board proceed with adjudication of the appeal. See 38 C.F.R. § 20.1304. The Board notes that the Veteran has submitted notices of disagreement (NODs) with June 2017 and November 2017 rating decisions that denied entitlement to a total disability rating based on individual unemployability due to service-connected disability and service connection for sleep apnea, arthritis, a dental condition, high blood pressure, and pre-diabetes. See July 2017, January 2018 NODs. However, the Veterans Appeals Control and Locator System (VACOLS) reflects that the RO has acknowledged receipt of those NODs and is processing the appeals. Therefore, a remand for issuance of an SOC for those issues is not required at this time. See Manlincon v. West, 12 Vet. App. 238 (1999) (finding that if an NOD remains unprocessed, a remand is required for issuance of an SOC). Entitlement to an initial rating in excess of 50 percent for unspecified anxiety disorder and unspecified depressive disorder is denied. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The Veteran’s unspecified anxiety disorder and unspecified depressive disorder are rated under the criteria set forth in 38 C.F.R. § 4.130, Diagnostic Code 9413. They have been assigned a 50 percent evaluation for the entire period on appeal. The relevant rating criteria are as follows: 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 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. 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 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. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The presence of all, most, or even some, of the enumerated symptoms recited for particular ratings is not required. 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. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (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.” Considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the preponderance of the evidence is against the assignment of a higher evaluation for the Veteran’s unspecified anxiety and depressive disorders. The record—to include consideration of the Veteran’s lay statements, private treatment records, VA treatment records, and the VA examination report—does not demonstrate that the Veteran’s overall disability picture is consistent with a 70 percent or higher rating. The Veteran’s post-service medical records document feelings of anxiety and depression, loss of interest or pleasure in doing things, feeling tired, poor energy, difficulty concentrating, low self-esteem, and sleep problems, including nightmares. However, his mental status examinations have generally demonstrated a rather high overall level of functioning. They have shown the Veteran to be alert and oriented to person, place, and time, with normal speech and thought processes. His insight and judgment are deemed fair. He has maintained good grooming, appropriate dress and eye contact, with pleasant affect and cooperative behavior. His short and long-term memory are intact. There is no evidence of any audio/visual hallucinations, illusions, delusions or paranoia. He does not exhibit compulsive, ritualistic, or stereotypic behavior. While he has endorsed vague, passive thoughts of “being better off dead,” he consistently and adamantly denies any active or specific thoughts of suicide or self-injury. See December 2015, January 2016, March 2016, April 2016, June 2016, April 2017, May 2017 VA treatment records. The Veteran was afforded a VA examination in February 2016. The VA examiner diagnosed him with unspecified anxiety disorder and unspecified depressive disorder. The Veteran was appropriately dressed and groomed for the examination, was cooperative, had good eye contact, and was alert and attentive in conversation. The examiner observed no abnormal movements or dysarthria. His speech was normal in rhythm, volume and tone. Although his mood was characterized as depressed, his affect was appropriate to content. His thoughts were described as logical and coherent. He denied suicidal or homicidal ideation, or passive death wish. There was no evidence of hallucinations or delusions. See February 2016 VA examination report. Other symptoms included low energy, difficulty concentrating, decreased enjoyment of activities, guilt, irritability, and nightmares. He was judged competent to manage his own financial affairs. The VA psychiatrist concluded that the Veteran’s diagnoses caused occupational and social impairment with reduced reliability and productivity. See February 2016 VA examination report. The Veteran submitted a mental status examination and Disability Benefits Questionnaire (DBQ) by J.A., Jr., a private psychologist (initials used to protect privacy). J.A. characterized the Veteran as severely impaired. He exhibited poor concentration and a short attention span. Although his psychomotor activity was normal and his speech patterns coherent, he was uncertain and hesitant, going over continuously in his mind what he was trying to say. See November 2016 DBQ and report. J.A. found that the Veteran’s ability to abstract was moderately impaired, and his ability to calculate was mildly impaired. Although his affect was normal, he alleged more or less constant depression. His energy level was low, particularly in the late afternoon hours. He reported agitation, anxiety, lack of concentration, and fear of making a mistake. The Veteran characterized himself as a perfectionist and stated that he had to check everything multiple times, which caused problems at work. J.A. noted petty ruminations over details, suggestive of severe obsessive-compulsive disorder (OCD). J.A. found that the Veteran’s memory was spotty and inexact despite his obsession over tiny details. See November 2016 DBQ and report. The Veteran denied any hallucinations and he was fairly oriented to time, place, and person. His judgment was described as fair and his insight was poor. His associations were found to be “a little loose” and his stream of thought was dry and inefficient. The Veteran reported disturbed sleep with insomnia and nightmares. See November 2016 DBQ and report. J.A. concluded that the Veteran suffered from anxiety, depression, OCD with delusional features, and was borderline psychotic. J.A. opined that his OCD, anxiety and depression resulted in deficiencies in most areas including work, family relations, judgment, thinking, mood, ability to establish and maintain effective relationships, irritability, and obsessive rituals which interfere with routine activities. See November 2016 DBQ and report. However, the debilitating symptoms and severe level of impairment described by J.A. are not supported by the overall record. The Veteran’s VA treatment providers have consistently reported that while his mood is anxious and depressed, he is alert and attentive in conversation, with normal speech and thought processes. In March 2016, the Veteran reported feeling more hopeful and optimistic since initiating the treatment process. See March 2016 VA treatment record. In April 2017, his motor activity and speech were within normal limits; thought content logical; thought process linear and goal-directed; and insight and judgment good. See April 2017 VA treatment record. His appearance was neat and casually dressed, he was pleasant and cooperative, and maintained appropriate eye contact. Id. He denied any suicidal/homicidal ideation and agreed to prioritize his time to allow more activities that bring joy into his life. Id. In May 2017, he reported that he was prioritizing his mental and physical health lately and expressed motivation to follow his treatment regimen. See May 2017 VA treatment record. In October 2017, he agreed to attend group counseling and completed all 12 sessions. See October 2017, January 2018 VA treatment records. In short, this is not the picture of a “borderline psychotic” patient. Some of the symptoms listed by J.A., including paranoia, panic attacks, memory loss, illogical or irrelevant speech, impaired abstract thinking, obsessive rituals, and persistent delusions, are directly contradicted by the Veteran’s treatment records. See November 2016 DBQ. Therefore, the Board determines that the February 2016 VA examination report is more probative. The preponderance of the evidence does not support the criteria for a 70 percent or greater disability rating. As to occupational impairment, the record reflects that after separation from service, the Veteran worked as an auto mechanic for 30 years and has been self-employed since 2009. In February 2016, he reported that he was about to lose his shop; however, J.A. noted in November 2016 that it was still open. There is no indication that he has had to quit working because of his psychological disorder. Indeed, in May 2017, he called to cancel an appointment because he “had work to do” and had to choose between making his appointment and “putting food on the table” for his family. See May 2017 VA treatment record. As to social impairment, he was divorced but remarried in 1985 and has remained married for over thirty years. He has two children from the prior marriage, a son and a daughter. He stays in touch with his daughter but not his eldest son. He has two other sons from his second marriage, both adults. The older son has an intellectual disability and lives in a nearby group home. The younger son lives at home with the Veteran and his wife. He states that he is close to the children from his second marriage. He states that he and his wife are committed to their marriage but there have been problems attributable to his irritability and depression. He states that he does not have any friends. See February 2016 VA examination report. The Board finds that the Veteran’s symptoms result in no more than occupational and social impairment with reduced reliability and productivity. They do not more closely approximate the types of symptoms contemplated by a 70 percent rating or higher and therefore, a 70 percent rating, or higher, is not warranted. See Vazquez-Claudio, 713 F.3d at 114 (holding 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”). While the Board acknowledges the impact the Veteran’s symptoms have had on his life, the Board finds that the frequency, duration, and severity of such symptoms are not causative of impairment resulting in deficiencies in most areas of life. While the Veteran did consistently endorse depressive and anxiety symptoms, he remained consistently oriented on all spheres and never endorsed any hallucinations, delusions, or psychosis. While his mood was often depressed or irritated, he always endorsed good judgment, insight, and speech. Consideration has been given to assigning a staged rating; however, at no time during the period in question have his disorders warranted a higher schedular rating. Hart v. Mansfield, 21 Vet. App. 505 (2007). Finally, the Board notes that although the Veteran was clinically diagnosed with both unspecified anxiety disorder and unspecified depressive disorder, the VA examiner determined that it is not possible to differentiate what portion of each symptom is attributable to each diagnosis without resorting to speculation, and they cannot be separately evaluated, as this would constitute pyramiding. The rule against pyramiding is addressed in 38 C.F.R. § 4.14, which notes that evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. DAVID A. BRENNINGMEYER Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.S. Chilcote, Associate Counsel