Citation Nr: 18149361 Decision Date: 11/09/18 Archive Date: 11/09/18 DOCKET NO. 16-28 318 DATE: November 9, 2018 ORDER Entitlement to an initial disability rating above 30 percent for an unspecified depressive disorder is denied. FINDING OF FACT The Veteran’s unspecified depressive disorder is not manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial rating higher than 30 percent for unspecified depressive disorder have not been met. See 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1973 to December 1975. In September 2015, a regional office (RO) of the Department of Veterans Affairs (VA) granted service connection for an unspecified depressive disorder disability, secondary service connected to the Veteran’s left knee disability that includes left knee strain with anterior proximal tibia osteophyte, and assigned a 30 percent disability rating. This matter is before the Board of Veterans’ Appeals (Board) on appeal from that rating decision. The Veteran asserts that he warrants a rating higher than 30 percent for the unspecified depressive disorder. Disability ratings are determined by comparing a present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon an 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. See 38 C.F.R. § 4.7. Consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the veteran’s capacity for adjustment during periods of remission. An evaluation is based on all the evidence of record bearing on occupational and social impairment, not solely on the examiner’s assessment of the level of disability recorded at the moment of the examination. See 38 C.F.R. 4.126. When evaluating the level of disability arising from a mental disorder, the extent of social impairment is considered, but no evaluation is based solely on social impairment; rather, a disability is evaluated from the point of view of a veteran who is working or actively seeking work. See id.; see also 38 C.F.R. 4.2. After careful consideration of all the evidence of the record, any reasonable doubt is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. A veteran can qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The symptoms associated with the psychiatric rating criteria are not intended to constitute exhaustive lists, 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, 443 (2002). The Board, therefore, considers whether the evidence demonstrates that a veteran suffers symptoms or effects that cause occupational and social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, and assigns the equivalent rating. See id. Here, the Veteran was diagnosed with unspecified depressive disorder, and his psychiatric condition is evaluated under 38 C.F.R. 4.130, Diagnostic Code 9435. Prior to August 4, 2014, VA’s Rating Schedule that addressed service connected psychiatric disabilities was based upon the Fourth Edition of the Diagnostic and Statistical Manual of Mental Disorders issued by the American Psychiatric Association (“DSM-IV”). See 38 C.F.R. 4.130. The DSM was recently updated with a 5th Edition (“DSM-5”), and the VA issued an interim final rule amending certain provisions in the regulations to reflect this update, including the Schedule for Rating Disabilities. Because the Veteran’s claim was certified to the Board following the promulgation of this rule, the DMS-5 criteria is utilized in this case. During the Veteran’s June 2015 evaluation, his private psychiatrist reported that the Veteran: (1) experienced some thought blocking; (2) exhibited blunted affect with psychomotor retardation; and (3) occasionally searched for a word. The Veteran also reported during the June 2015 evaluation that he: (1) experienced a general discomfort with being in a crowd; (2) had outbursts of anger because of his knee pain; (3) felt sad about his anxiety attacks; (4) derived less pleasure from the things he used to enjoy; (5) was depressed about his inability to play golf or go hunting; (6) experienced memory problems and had difficulty making decisions; (7) often did not join his wife on her trips; (8) was frequently moody, irritable, tired, less energetic, and unable to concentrate on one thing for long time; (9) had a decrease in his sexual drive; and (10) found his sleep not refreshing. Similarly, during his August 2015 VA evaluation, the Veteran reported having periods of increased irritability and low mood because of his knee pain, having poor sleep, and being increasingly angry during his work hours. The Veteran, however, denied experiencing anhedonia during his August 2015 VA evaluation. Moreover, during his July 2016 VA treatment, the Veteran reported that, after his retirement in April 2016, he: (1) has been sleeping fine; (2) regularly engaged in recreational activities such as fishing, riding a bike, and working in the yard; (3) lost weight by walking two miles every morning and improving his eating habits; and (4) engaged in more activities and moving around. The Board finds the Veteran to be both competent and credible in his reports of his psychiatric symptoms to his private psychiatrist, the August 2015 VA examiner, and the July 2016 VA medical practitioner. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Carefully considering the evidence of record, the Board finds that the Veteran’s impairment due to unspecified depressive disorder is consistent with a 30 percent disability rating throughout the appeal period, given that a 30 percent evaluation is warranted when there is an 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, suspiciousness, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and mild memory loss. See 38 C.F.R. 4.130. In contrast, a 50 percent evaluation is warranted where there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: (1) flattened affect; (2) circumstantial, circumlocutory, or stereotyped speech; (3) panic attacks more than once a week; (4) difficulty in understanding complex commands; (5) impairment of short-and long-term memory, e.g., retention of only highly learned material, forgetting to complete tasks; (6) impaired judgment; (7) impaired abstract thinking; (8) disturbances of motivation and mood; and (9) difficulty in establishing and maintaining effective work and social relationships. See id. A 70 percent evaluation is warranted where 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: (1) suicidal ideation; (2) obsessional rituals which interfere with routine activities; (3) intermittently illogical, obscure, or irrelevant speech; (4) near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; (5) impaired impulse control, such as unprovoked irritability with periods of violence; (6) spatial disorientation; (7) neglect of personal appearance and hygiene; (8) difficulty in adapting to stressful circumstances, including work or a work-like setting; and (9) inability to establish and maintain effective relationships. See id. A 100 percent evaluation is assignable where there is total occupational and social impairment due to such symptoms as: (1) gross impairment in thought processes or communication; (2) persistent delusions or hallucinations; (3) grossly inappropriate behavior; (4) persistent danger of hurting self or others; (5) intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; (6) disorientation to time or place; (7) memory loss for names of close relatives, own occupation, or own name. See id. Here, during his June 2015 evaluation by his private psychiatrist, the Veteran was able to carefully detail his interests, life events, and emotions all the way since he was in high school. The Veteran’s private psychiatrist reported that the Veteran appeared his stated age and wore casual attire, and that the Veteran was alert, oriented and cooperative, answered all the questions appropriately without being spontaneous or exhibiting flight of ideas, or looseness of association, had normal tone and volume of speech, and suffered of no aphasia or dysarthria. The Veteran reported during his June 2015 evaluation that he was: (1) happily married to his current wife for 28 years: (2) in close relationships with his daughter from his first marriage and with his two sons from his current marriage; (3) employed as a VA purchasing agent and, in addition, as an associate pastor; (4) actively involved with church members; and (5) able to hide his feelings when he felt it was necessary to remain positive with others and to set a good example. The Veteran also denied having any suicidal or homicidal thoughts, self injurious behavior, or delusions. A July 2015 depression screen, wherein the Veteran was asked if he had little interest or pleasure in doing things and whether he was feeling down, depressed, or hopeless, and the Veteran responded, “Not at all” to both questions. The depression screen was negative. At that time, he was also described as alert, oriented times three and having a friendly mood and affect. During his August 2015 VA examination: (1) the VA examiner reported that the Veteran appeared jovial; and (2) the Veteran denied any suicidal or homicidal ideations, reported having low-mood states only on a periodic basis, emphasized his happy marriage and close relationships with his children and grandchildren, his employment at VA and as an associate pastor, detailed the periods and nature of his prior employments, and verified that he was able to manage his finances. Further, the Veteran detailed the level of his occupational functioning, which the examiner identified as a level corresponding to a 10 percent rating, i.e., lower than the Veteran’s current 30 percent rating. During the Veteran’s October 2015 VA treatment, a VA medical practitioner reported that the Veteran was in a friendly mood, had polite affect, and was alert and oriented as to person, place, and time. During the Veteran’s July 2016 VA treatment, a VA medical practitioner analogously reported that the Veteran was alert and oriented as to person, place, and time. During his April 2016 VA treatment, the Veteran denied thoughts of self-harm, suicide, hopelessness or helplessness, or being cognitively impaired with safety or security concerns. Furthermore, in May 2015, the Veteran removed the Disabled American Veterans as his representative and elected to litigate this matter pro se. In October 2015, the Veteran filed a three-page, single-spaced, well-reasoned and well-written brief. The brief: (1) detailed the RO’s rating obligations; (2) listed the occupational and social impairment required to obtain 70-percent and 100-percent disability ratings for post-traumatic stress disorder; (3) detailed a decision issued by the U.S. Court of Appeals for Veterans Claims in regard to post-traumatic stress disorder, and utilized a correct legal citation format; (4) detailed a decision issued by a Veterans Law Judge in regard to post-traumatic stress disorder, and utilized correct legal citation and block-quotation formats; (5) reflected on the Veteran’s own factual circumstances; and (6) articulated a legal conclusion favorable to the Veteran. The Board finds the medical reports of the August 2015, October 2015, April 2016, and July 2016 VA examiners and medical practitioners, and the Veteran’s private psychiatrist to be highly probative. Moreover, the Veteran’s legal brief is highly probative in terms of his ability to focus on a specific task, research sophisticated sources, digest complex information, and to set forth a well thought-through and well-articulated argument. Applying the Veteran’s psychiatric symptomatology to the rating criteria noted above, the Board finds that the Veteran’s unspecified depressive disorder does not approximate the criteria for a 50 percent or higher rating. The preponderance of the evidence shows that, throughout the appeal period, the Veteran’s disability has primarily been manifested as occasions of depressed mood, anxiety, irritability, and insomnia. The preponderance of the evidence is against a finding that there has been an increase in those symptoms, either by the Veteran’s reports or on examination. Given that all of the Veteran’s examiners found that his mood disorder presently causes the symptoms indicative of only occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, these findings are consistent with the criteria for no more than a 30 percent disability rating. The Board acknowledges the extensive report the Veteran provided to his private psychiatrist as to: (1) the emotions the Veteran experienced when he was stationed in Forts Benning, Bragg and Sam Houston, and witnessed the death of one patient and the amputation of limbs of other patients; (2) the Veteran’s first marriage, a portion of which the Veteran spent away from his first wife because of his active service; (3) the Veteran’s judgmental post-service attitude as to his peers who felt overwhelmed by life hardships; (4) the Veteran’s post-service employments that were night jobs, etc. However, these are situations that the Veteran experienced in the distant past and what determines the evaluation or evaluations assigned are the symptoms the Veteran has experienced during the appeal period or in relative close proximity to the appeal period. However, even accepting these symptoms, the Board finds they do not establish entitlement to a higher initial rating for the unspecified depressive disorder. For all of the above-described reasons, the Board finds the preponderance of the evidence is against an initial evaluation in excess of 30 percent for unspecified depressive disorder, and the claim for increase is denied.   A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Anna Kapellan, Associate Counsel