Citation Nr: 18154350 Decision Date: 11/29/18 Archive Date: 11/29/18 DOCKET NO. 12-11 625A DATE: November 29, 2018 ORDER An initial rating in excess of 50 percent for depressive disorder (depression) from December 26, 2010 to December 17, 2016 is denied. FINDING OF FACT From December 26, 2010 to December 17, 2016, the Veteran’s depression was manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW From December 26, 2010 to December 17, 2016, the criteria for an initial rating in excess of 50 percent for depression are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1992 to February 2001. This matter comes before the Board of Veterans’ Appeals (Board) on appeal an April 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for depression effective December 26, 2010, and assigned a 30 percent initial rating. In September 2015, the RO issued a rating decision increasing the Veteran’s rating for depression to 50 percent effective January 9, 2015. In August 2017, the Board granted the Veteran an initial rating of 50 percent, but no higher, for depression prior to December 17, 2016, and a rating of 70 percent, but no higher, for depression thereafter. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to an August 2018 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the August 2017 Board decision that denied an initial rating in excess of 50 percent for depression from December 26, 2010 to December 17, 2016, and remanded the matter for compliance with the terms of the JMPR. The Board observes that while the issue of entitlement to a total disability rating due to individual unemployability (TDIU) was remanded by the Board in August 2017, an October 2017 rating decision granted the Veteran a TDIU effective December 17, 2016, the last day that he held substantially gainful employment. Thus, the issue of entitlement to a TDIU will not be further addressed herein. 1. A rating in excess of 50 percent for depressive disorder from December 26, 2010 to December 17, 2016 is denied. The JMPR reflects the Parties’ agreement that the Board erred by stating that the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV) applied in this case, and by relying on Global Assessment of Functioning (GAF) scores as a basis for evaluating the Veteran’s level of social and occupational impairment. See JMPR at 1-2. Critically, no other deficiencies were identified. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (“Court will [not] review BVA decisions in a piecemeal fashion”); see also Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990), aff’d, 972 F.2d 331 (Fed. Cir. 1992) (“[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court”). Pursuant to the JMPR, the period on appeal is from December 26, 2010 to December 17, 2016, for which the Veteran is in receipt of a 50 percent rating for depression. The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) is for application, as the Veteran’s appeal was certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014). The DSM-5 states that it was recommended that the use of GAF scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice. As the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board will afford no probative value to the GAF scores mentioned in the record or to assessments of the severity of the Veteran’s mental disorder based on GAF scores. See also Golden v. Shulkin, 29 Vet. App. 221 (2018) (finding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim). Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities, 38 C.F.R. Part 4. The percentage ratings contained in the Schedule for Rating Disabilities represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran’s depression is currently rated under the General Rating Formula for Mental Disorders (Rating Formula). 38 C.F.R. § 4.130, DC 9434. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” 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 the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the DC. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the DSM-5. When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Under the Rating Formula, a 50 percent rating is assigned for a psychiatric disorder resulting in 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 when the psychiatric condition produces 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 warranted when there is total occupational or 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 Veteran’s VA treatment records show that he received regular psychiatric care from 2011 to 2013, at which point he moved to a new state and stopped attending regular treatment. He presented for VA psychiatric examinations in November 2010 and August 2015. At the November 2010 VA psychiatric examination, the Veteran reported that he had a good relationship with his children and that he was currently dating. He stated that he had good support from a group of friends and socialized at work. The Veteran reported feeling depressed and angry some mornings and having anxiety at home, but feeling better when he was at work and distracted. He reported missing some days of work due to needing time alone and feeling overwhelmed. The Veteran stated that he often felt overwhelmed by his physical problems and depressed about “everything.” He reported difficulty falling asleep, and did not endorse any inappropriate behavior or panic attacks. He had no history of suicide attempts or violence. The Veteran’s mood was agitated, but attitude was cooperative and affect was normal. He was fully oriented, with average intelligence and judgment and normal memory. The examiner noted that the Veteran was employed full-time as a claims assistant and that he was “able to attend work appropriately for the most part.” The examiner diagnosed the Veteran with depressive disorder and found that the Veteran had occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to his symptoms. The Veteran attended a mental health assessment in January 2011, and reported feeling periodic anxiety and trouble falling asleep. He stated that he felt “stressed out.” The Veteran’s speech was generally fluent, manner was pleasant, thought process was logical, and he expressed no suicidal or homicidal ideation. He was diagnosed with anxiety disorder and depressive disorder. Later that month, the Veteran was noted to have had panic attacks and anxiety. He had good impulse control, fluent speech, anxious appearance, and partial insight. The Veteran reported sleeping well in March 2011, and denied any depression, although his energy was low. His memory was intact, and he was alert and fully oriented. In February 2012, the Veteran reported having increased depression following the death of his sister. In October 2012, he reported having depressed mood, difficulty sleeping, loss of interest in activities, low energy, and anxiety. The Veteran stated that he had stopped taking medication for a time, but his depression symptoms had increased. His speech was coherent and logical. In November 2012, the Veteran reported sleep problems, fatigue, memory problems, and stated that his medications were interfering with his workload. See November 2012 VA Form 21-4138. At an April 2013 psychology consultation, the Veteran reported having depression and mood concerns. His appearance was well-groomed, and his thought and speech was appropriate. He was diagnosed with chronic pain and depression. He was noted to have good social support and good verbal skills. In September 2013, the Veteran stated that he experienced panic attacks and social anxiety, difficulty retaining knowledge, difficulty getting up in the morning and doing simple tasks like getting dressed and maintaining hygiene, and feeling constantly mad and isolated and irritable for no good reason. See September 2013 VA Form 9. The Veteran presented for a VA psychiatric examination in August 2015. He reported feeling depressed/sad, and that he continued to take daily anti-depressant medication. The Veteran reported that he began using alcohol daily in January 2015 secondary to the stress of his marital separation and emotional distress. He stated that he was close with his younger children, but that it was hard living far from them. The Veteran stated that he had a friend from work, but did not have good contact with other friends since his separation. He stated that he had continued to work as a claims assistant at the VA until September 2014, and that after he moved to Arkansas, he started working in janitorial services for 15-20 hours a week at Sam’s Club for 30-35 hours a week. The Veteran reported doing well at both jobs, but that he did miss a lot of time at his jobs due to lack of energy or motivation, and that he had been suspended from Sam’s Club due to this. He said that it was hard for him to focus at work and that he felt irritable and had decreased energy, and that he no longer engaged in community activities and spends a lot of time at home. The examiner noted that the Veteran had depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran’s appearance was clean and appropriate, and orientation and thought processes were normal. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. After a review of the medical and lay evidence, the Board finds that the Veteran is not entitled to a rating for depression in excess of 50 percent at any time during the period on appeal, as at no time during that period was his depression productive of symptomatology that more closely approximated occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In this regard, the Board emphasizes that at no time during the appeal did the Veteran’s manifest any of the exemplar symptoms listed in the Rating Formula associated with ratings of 70 percent or 100 percent, or any symptoms of similar frequency, severity or duration, nor did any competent medical professional opine that his depression was productive of symptomatology that more closely approximated occupational and social impairment with deficiencies in most areas or total occupational and social impairment. In this regard, the Veteran has had symptoms of difficulty sleeping, low energy, difficulty concentrating, emotional numbness, guilty feelings, and alcohol abuse. Though these symptoms have been shown to manifest with frequency and to greatly impact the Veteran’s mood and ability to function, the Board, in weighing all of the evidence, does not find that these symptoms are of a comparable severity to the more extreme symptomatology required for ratings higher than those now assigned, as the symptoms manifested from December 2010 to December 2016 would not cause occupational and social impairment with deficiencies in most areas or total occupational and social impairment. The Veteran did report some impairment in his occupational functioning, but managed to stay employed throughout this period. While he did report frequently missing work in August 2015, he also reported working a significant number of hours a week, totalling 45 to 55 hours a week, at two different jobs, and his reasons for leaving his earlier job with VA were due to relocating to be with his wife and were not related to his psychiatric symptoms. The Veteran also reported having some friends through work. Overall, his symptoms indicate that they did affect his employment ability, causing reduced reliability and productivity, but the Board does not find that they were of such a severity that they caused actual “deficiency” in his ability to maintain employment. The Veteran also has had some positive social relationships, including a positive relationship with his children and some friends. He did report having decreased interest in activities and reported that he had stopped participating in community activities. He also had difficulty falling asleep and often felt anxious, agitated, or depressed. The Board accepts that these are significant symptoms which do indicate disturbances of motivation and mood and difficulty in establishing and maintaining social and work relationships, but they do not show a complete inability to form relationships, nor is there any evidence that these mood disturbances caused near-continuous panic or depression affecting his ability to function independently. The Veteran has also always been found to be well-oriented to person, time, and place, could maintain his own personal hygiene, made good eye contact and interaction, and had no impairment of thought process or communication. At no time has he been shown to have obsessional rituals, illogical or obscure speech, spatial disorientation, or neglect of personal hygiene. In this regard, the Board emphasizes that while the Veteran reported “difficulty” with getting dressed and maintaining his hygiene, he was able to report for work on most days, and there is no indication in the record that his hygiene was inappropriate when he did so, or that he was undernourished. To the extent that he occasionally was unable to get out of bed due to depression or low energy, the Board finds that this symptomatology is more closely approximated by the description “disturbances of motivation and mood,” which is consistent with his present rating. Likewise, the evidence does not show that the Veteran’s depression manifested with suicidal ideation during the appeal. The Veteran consistently denied suicidal ideation throughout the appeal, and no VA examiner found that he was a threat to himself or others. In this regard, the Board emphasizes that the August 2015 VA examiner amplified and explored a positive response that the Veteran provided to an item on the Beck Depression Inventory about suicidal thoughts/wishes that would not be carried out, and that the Veteran provided interview responses wherein he “adamantly denied” any suicidal ideation, intention, or plan, and where he explained that he head in the past had fleeting, vague, passive thoughts of feeling “tired,” but never with any suicidal intent or plan. See August 2015 VA Psychiatric Examination Report. Accordingly, the Board finds that the Veteran’s depression symptomatology during the appeal was not manifested by suicidal ideation, to include passive suicidal ideation. The Board therefore finds that from December 26, 2010 to December 17, 2016, the Veteran’s depression symptomatology was not productive of occupational and social impairment with deficiencies in most areas or total occupational and social impairment, and did not more nearly approximate the criteria for a rating in excess of 50 percent for depression. Thus, an initial rating in excess of 50 percent for depression is denied from December 26, 2010 to December 17, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, DC 9434. S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D.M. Badaczewski, Associate Counsel