Citation Nr: 18148750 Decision Date: 11/09/18 Archive Date: 11/08/18 DOCKET NO. 09-04 927 DATE: November 9, 2018 ORDER Entitlement to an initial rating of 30 percent for major depressive disorder (MDD) is granted. FINDING OF FACT The symptoms and overall impairment caused by the Veteran’s psychiatric disability more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but did not more nearly approximate occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 30 percent, but no higher, for MDD have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.130, DC 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to October 2007. This matter comes before the Board of Veteran’s Appeals (Board) from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2017, the Board, in part, denied an initial rating higher than 10 percent for service-connected MDD. The Veteran filed an appeal to the United States Court of Appeals for Veteran’s Claims (Court). In May 2018, the Veteran’s representative and VA General Counsel filed a joint motion for partial remand (JMPR). The Court granted the joint motion that same month, vacating the August 2017 Board decision in regards to the claim for an initial increased rating for MDD, remanding the matter for additional proceedings consistent with the JMPR. The case has been returned to the Board at this time in compliance with the JMPR 1. Entitlement to an initial rating of 30 percent for major depressive disorder (MDD) Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath, 1 Vet. App. at 589. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran is currently service-connected for MDD, rated as 10 percent disabling from October 6, 2007. He Veteran contends that his service-connected MDD warrants an initial disability rating higher than 10 percent under 38 C.F.R. § 4.130, DC 9434. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely based on social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 10 percent rating is assigned 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. A 30 percent rating is assigned 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent disability rating is warranted when there is 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, DC 9411. A 70 percent disability rating is warranted when there is 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); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when there is 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, own occupation, or own name. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the veteran’s symptoms, but it must also make findings as to how those symptoms impact the veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (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. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the general rating formula are also associated with 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 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Service treatment records (STRs) in February 2007 reflect that the Veteran felt restless, high irritability, and depression for the past 18 months since he injured his shoulder. He experienced feelings of hopelessness, frustration due to shoulder pain, daytime somnolence, difficulty falling asleep because of pain, middle-night awakening, insomnia due to pain, and early morning awakening. He denied nightmares. He exhibited loss of interest in activities, anhedonia, social withdrawal, apathy, and difficulty functioning at work. He did not report any dangerous thoughts, abnormal thoughts, sexual behavior complaints, personality related complaints, or behavioral complaints. A September 2007 VA examination report indicates that the Veteran became moderately depressed after an in-service injury prevented him from being a martial arts instructor. He lost interest in work and social activities, and had insomnia seven days per week. The examiner noted that his depression sufficiently affected his work in the military and in social functioning. There was no impairment of thought process or communication, or inappropriate behavior except for social withdrawal. He maintained basic activities of daily living. The examiner assessed moderate major depression. Post-service VA treatment records in November 2008 document that the Veteran responded to his in-service shoulder injury by withdrawing. He stated that he and his spouse were intimate only once in the past year, and that he lost his drive. He currently worked in his brother’s tile retail store where there were no physical demands on him. In December 2008, the Veteran reported that he felt better and less depressed since his medication was increased. He had improving energy, motivation, and interest in doing things with his family. His sexual relationship with his wife improved, as had his anxiety symptoms. He also enjoyed going Christmas shopping for his kids. He was appropriately groomed, cooperative, attentive, and interested. His speech was normal, his affect appropriate, his mood euthymic, and his thought content normal. His judgment was good, his insight was fair, and he denied suicidal and homicidal ideation. VA treatment records in January 2009 reflect that the Veteran experienced a severe anxiety episode at the golf range, where he “fainted.” He reported he had had prior anxiety spells but not to this extreme. He was still depressed, continued to have sleep disturbances even with the continuous positive airway pressure (CPAP) machine, and his sexual desire was still low. In April 2009, he reported better mood overall with the increase in medication. He still endorsed anxiety, especially when people raised their voices. He lived with wife and their two young children; and reported that while he was more active, he had aches and pains in his shoulders, which caused physical limitations. He reported a lack of focus at times and a lack of interest in sex. He denied any suicidal and homicidal ideation, or substance use. In December 2009, he stated he was doing well with his mood, and that his medication was helpful. He found exercising at gym very therapeutic, and was learning how to deal with stress better. He denied suicidal and homicidal ideation. He enjoyed football and the Giants. He appeared his stated age, and he was casually dressed. He was pleasant, his speech fluent, and his mood good. His thoughts were logical, his concentration was good, and his insight and judgment were fair. VA treatment records in May 2010 document that the Veteran was stable. He was busy with work and did not have any major travel plans. He mentioned that he tended to avoid confrontation or be less persistent at times, which he attributed to his medication because he believed it kept him mellow and even-tempered. In September 2010, the Veteran reported that he was doing fairly well with situational anxiety at times. He worked 60 to 70 hours per week, and did not take any vacations in the past year. He denied suicidal and homicidal ideation, and stated that his continuous back pain was manageable. He had two young children, and his wife was supportive. He appeared his stated age, and he was casually dressed. His behavior was normal, his speech was fluent. and his mood was good. His thoughts were logical, his concentration was good, and his insight and judgment were fair. VA treatment records in March 2011 indicate that the Veteran had difficulty concentrating, and he lost focus in meetings and business events. He denied worsening of mood or suicidal and homicidal ideation. He enjoyed his new home, and he was taking his first vacation in years. In June 2011, the Veteran reported doing well, and that his medication was helpful with his mood and concentration. He went on vacation with his family, and work continued to be busy. He mentioned feeling some stress with employees, but denied suicidal and homicidal ideation, and stated that he continued to exercise daily at the gym. In October 2011, the Veteran stated that he was doing well. He recently opened another store and his father gave him advice on the business. He enjoyed spending time with his two children, but had limited time due to work. VA treatment records in April 2012 document that the Veteran continued to do well on his medication. He had hired a nanny and found her to be helpful. His business was picking up and he had little time for vacations, but his neighborhood had many activities such as golf and swimming. He appeared his stated age and he was casually dressed. His behavior was normal and pleasant, his speech fluent, his mood good, and his thoughts logical. He denied suicidal and homicidal ideation, hallucinations, and delusions. His attention and concentration were good, and his insight and judgment were fair. VA treatment records in July 2015 reflect stable mood. The Veteran recently came back from vacation and he had a nice time. His work was busy, but his anxiety and sleep improved. He denied suicidal and homicidal ideation, as well as major depression. In October 2015, the Veteran reported doing well. He stated he was busy with work and did not get a chance to go on vacation. He planned on visiting his brother for Thanksgiving, and he was trying to lose weight. He appeared his stated age and he was casually dressed. His behavior was normal and pleasant, his speech fluent, his mood good, and his thoughts logical. He denied suicidal and homicidal ideation, hallucinations, and delusions. His attention and concentration were good, and his insight and judgment were fair. VA treatment records in April 2016 reflect that the Veteran was doing well but he was divorcing his wife. He stated they were on good terms but grew apart. She was renting a home with the children nearby. He reported that work had been busy, and he experienced anxiety and poor sleep thinking about work and his home situation. He denied depression. In August 2016, the Veteran finalized his divorce. He denied having any animosity with his ex-wife, and stated that he saw his two children every other weekend since they lived nearby. His job was stable and kept him busy, and he lost weight with exercising and diet. He denied depression, and stated that his medications helped with his mood and anxiety. He reported that he was dating another woman, but that he was taking things slow because he wanted to be careful with new relationships. He appeared his stated age and he was casually dressed. His behavior was normal and pleasant, his speech fluent, his mood good, and his thoughts logical. He denied suicidal and homicidal ideation, hallucinations, and delusions. His attention and concentration were good, and his insight and judgment were fair. A December 2016 VA examination report reflects mild recurrent MDD. The examiner found that the Veteran had occupational and social impairment due to mild or transient symptoms. The Veteran reported that he married in July 2000 and that he and his wife were separated for 6 months; he anticipated that the divorce to be finalized in the near future. He stated that his wife had custody of the two children and that he had visitation every other weekend. He reported he had a good relationship with his children. He was not in a relationship currently and lived alone, although he maintained weekly contact with his brother and some contact with his parents. He had a few friends, but none of them were close. He stated that he spent much of his day working, but that for enjoyment he watched television. He also enjoyed golfing, but he no longer played it because of his shoulder injury. He was employed full-time as a warehouse manager for his family-owned tile store for the last 10 years. He had not received any unsatisfactory performance evaluations and did not receive any accommodations for mental health or medical issues. He stated that overall, he was doing okay on the job, but that he felt tired all the time. He thought that his marriage suffered because of the depression because he isolated himself and was not intimate with his wife. He reported that he did not like to be around people, and that he felt nervous when they raised their voices. He was unmotivated to do anything and had to force himself to play with his children. He stated that when he went to bed, he sometimes wished that he did not wake up. He had anhedonia over the past few years and reported panic attacks once to twice a week, usually triggered by confrontation or feeling overwhelmed. His current symptoms were depressed mood and anxiety. He was dressed and groomed appropriately and appeared to be in good general health. He was alert and attentive, showed no evidence of excessive distractibility, and tracked conversation well. He was oriented to person, time and place; his speech was appropriate; his attitude was open and cooperative; his mood and affect were within normal limits; and his memory functions were grossly intact. His thought process was intact; his thought content was normal; and he denied suicidal and homicidal ideation or intent. His insight and judgment were fair, and there was no evidence of a perceptual disorder. As previously noted, the Veteran’s MDD is currently rated as 10 percent disabling. For the following reasons, an initial disability rating of 30 percent, but no higher, for MDD is warranted for the entirety of the appeal. The evidence shows that the Veteran was socially withdrawn, had difficulty sleeping, and had depressed mood and anxiety. He experienced an anxiety attack in January 2009, and in December 2016 reported that he had panic attacks once to twice a week. While he had a good relationship with his children, brother, and parents, he and his wife were recently divorced. The record shows that the Veteran had decreased sexual drive since November 2008, and that he had lost interest in activities he used to enjoy. In addition, although he regularly worked out at a gym and did well at his job as a warehouse manager, he did not like to interact with people and tended to become nervous and anxious when faced with conflict and confrontation. Thus, the evidence reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate a disability rating of 30 percent for his service-connected MDD. However, neither the symptoms nor overall impairment more nearly approximate occupational and social impairment required for a 50 percent rating or higher. The evidence shows that the Veteran had depressed mood, anxiety, panic attacks once to twice a week, and difficulty concentrating. However, the Veteran’s speech was normal, his judgment and abstract thinking were intact, he did not have difficulty understanding complex commands, and he did not have difficulty establishing and maintaining effective work and social relationships. To the contrary, the evidence shows that he was a pleasant and cooperative; oriented to person, time, and place; never received an unsatisfactory performance evaluation; and that he had a good relationship with his children, parents, and brother, the latter of whom owned the store where he worked. He also had a few friends, although none were close friends. Further, he had a good time during his vacation with his family in June 2011 and July 2015, and made plans to visit his brother for Thanksgiving in October 2015. In addition, he had good personal hygiene, he did not display obsessive rituals, and he denied suicidal and homicidal ideation. Moreover, he worked full time throughout the appeal period. Thus, a rating higher than 30 percent for his service-connected MDD is not warranted. The Board has considered the Veteran’s claims for an increased initial rating for MDD and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Leifert, Associate Counsel