Citation Nr: 18150157 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 13-27 239 DATE: November 14, 2018 ORDER Entitlement to an evaluation in excess of 70 percent for an unspecified depressive disorder since April 6, 2017 is denied. REFERRED On appeal the Veteran has raised the issue of entitlement to service connection for posttraumatic stress disorder. This issue, however, is not currently developed or certified for appellate review. Hence, it is referred to the RO for appropriate action. FINDING OF FACT Since April 6, 2017, the Veteran’s unspecified depressive disorder has not been productive of total occupational and social impairment. CONCLUSION OF LAW Since April 6, 2017, the schedular criteria for a rating in excess of 70 percent for an unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.7, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1970 to September 1970, and from April 1989 to May 1989. He also served in the National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran testified at a hearing in January 2016 before the undersigned. A copy of the transcript has been associated with the Veteran’s electronic claims file. In May 2017, VA granted a 70 percent rating for an unspecified depressive disorder, effective April 6, 2017. As that was not a full grant of the benefit sought on appeal, his claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). In February 2018 the Board remanded this claim for further development. In February 2018, the Board also remanded the issue of entitlement to a total disability rating on the basis of individual unemployability due to service-connected disabilities. In a September 2018 rating decision, VA granted that benefit, effective April 6, 2017. As that rating decision represents a full grant of the benefits sought, and the record contains no indication that the Veteran has disagreed with the effective date assigned, that issue is no longer in appellate status. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The Veteran contends that his unspecified depressive disorder since April 6, 2017 has been more severe than the assigned rating reflects. Disability evaluations are determined by comparing a veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating, otherwise, the lower rating is 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. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. See 38 U.S.C. § 5107(b). A veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether he is entitled to “staged” ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s unspecified depressive disorder is rated under Diagnostic Code 9435. VA regulations establish a general rating formula for mental disabilities. See 38 C.F.R. § 4.130. The term “such as” in 38 C.F.R. § 4.130 precedes lists of symptoms that are not exhaustive, but rather serve as examples of the type and degree of symptoms and their effects that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms listed. Instead, VA will consider all symptoms of a claimant’s disability that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders. Under Diagnostic Code 9435 a 70 percent rating is assigned 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: 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent evaluation is warranted if 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; memory loss for names of close relatives, own occupation, or own name. Id. In April 2017, the Veteran was examined by VA to assess the severity of his service-connected depressive disorder. The Veteran described recurring bad memories and difficulties with his medications, which has led to increased anxiety, depression, insomnia and some increased suicidal ideation on an occasional basis. He also reported difficulty with attention and concentration but found solace in his relationship with his grandchildren. There was no reported evidence of psychosis. In reviewing the record, the April 2017 examiner found that the Veteran exhibited an increase in irritability and self-isolation since his last mental health examination. He presented with more depression and anxiety and less involvement in social activities with his wife, family and friends. The Veteran reported more stress on his marriage. He was working part time five to fifteen hours per week cleaning empty movie theaters just to keep busy. The Veteran attributed his depression to a combination of physical and mental health issues. The examiner found that the appellant’s symptoms were manifested by a moderate to severe psychosocial maladjustment. When asked to address the global impact of the appellant’s disorder the examiner found that it was manifested by occupational and social impairment with deficiencies in most areas. The examiner did not report evidence of symptoms such as a gross impairment in thought processes or communication, or evidence that the appellant suffered from persistent delusions or hallucinations. Additionally, there was no evidence of grossly inappropriate behavior, or evidence that the appellant was in persistent danger of hurting self or others. He was able to perform activities of daily living, he was not disorientated to time or place, and there was no evidence of such a severe memory loss that he could not recall the names of close relatives, his own occupation, or his own name. VA outpatient records dated since April 2017 reveal that in May 2017, the claimant reported worsening anxiety, irritability, and frustration tolerance, as well as increasingly frequent panic attacks. Mental status examination revealed that the appellant was well groomed, oriented, and cooperative. There was no evidence of abnormal psychomotor activity or speech changes. His thought process was logical and goal oriented, there were no delusions or hallucinations. His mood was described as irritable, and his affect was constricted. He showed poor insight but fair judgment. By August 2017, the appellant reported having a stable mood. No major depressive symptoms, no suicidal ideation, no panic attacks, no negative self-talk, and no evidence of helplessness were reported. He showed evidence of good insight and judgment. In November 2017, the appellant reported not doing well, particularly since a terrorist attack in New York on Halloween 2017. He felt irritated and aggravated. The examiner opined, however, that the claimant’s overall condition was the same. Mental status examination revealed that the appellant was well groomed, oriented, but hostile. There was no evidence of abnormal psychomotor activity. He did speak loudly and with increased quantity. His thought process was logical and goal oriented, there were no delusions or hallucinations. His mood was euthymic, affect full, and insight and judgment were good. Based on a thorough review of the evidence of record, the Board finds that a rating in excess of 70 percent for an unspecified depressive disorder is not warranted. As noted above, a 100 percent rating requires evidence of 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 the Veteran hurting himself or others, or intermittent inability to perform activities of daily living, disorientation to time or place, and memory loss. The evidence in this case shows that at no time since April 6, 2017, has the claimant ever shown evidence of a gross impairment in his thought process, there never have been any hallucinations or delusions, he has never been described as a danger to himself or others, and there is no evidence that the claimant is unable to perform the tasks of daily living due to his depressive disorder. While the disorder certainly is productive of some degree of occupational and social impairment, the preponderance of the evidence is against entitlement to an increased rating. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The claim is denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Allen M. Kerpan, Associate Counsel