Citation Nr: 18155731 Decision Date: 12/06/18 Archive Date: 12/04/18 DOCKET NO. 16-18 716 DATE: December 6, 2018 ORDER An initial rating in excess of 50 percent for dysthymic disorder is denied. FINDINGS OF FACT 1. The Veteran had active service from December 1968 to September 1970. 2. For the entire period on appeal, the Veteran’s dysthymic disorder has been manifested by symptoms such as disturbances in motivation and mood and difficulty in establishing and maintaining effective work relationships. CONCLUSION OF LAW The criteria for an initial rating in excess of 50 percent for dysthymic disorder have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.130, 4.3, 4.7, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Under DC 9411 and the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as a 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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 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. A 100 percent evaluation for a psychiatric disability is warranted 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. Careful review of the evidence of record shows that the Veteran’s symptomatology approximates symptoms associated with a 50 percent rating for the entire period on appeal. Specifically, VA examinations conducted in April 2009 and June 2012 describe the Veteran’s speech as normal in rate, rhythm and volume. A review of the evidence also shows that he has not exhibited persistent delusions or hallucinations and does not have a history of hurting himself or others. Further, a lack of impulse control is absent from the record. In a June 2010 VA examination, the examiner determined that the Veteran appeared able to handle his bills, keep track of appointments, and not get lost while driving. Further, he was noted to be able to engage in all activities of daily living (ADLs) independently and without assistance. The June 2010 examination also noted that the Veteran’s thought process was logical and coherent and his social judgment and insight were fair to good. In testing his short-term memory, the examiner found that the Veteran’s immediate retention for four unrelated words was perfect. Finally, despite noting his concentration as fair, the examiner noted that the Veteran obtained 4/5 correct on his serial sevens test. In a June 2012 VA examination, the Veteran’s long-term memory was intact. A December 2012 examination determined that while he forgot names, direction, or recent events, this memory loss was mild at best. A July 2016 private psychiatric examination discussed various limitations resulting from the Veteran’s dysthymic disorder and determined that his disability caused him to neglect his personal appearance and hygiene. With respect to the Veteran’s professional functioning, the July 2016 assessment determined that he would be unable to function effectively in a work setting. Specifically, he was noted to be limited in his abilities “to perform activities within a schedule, maintain regular attendance, be punctual within customary tolerance, and set realistic goals or make plans independently.” Further, he exhibited limitations in his ability to “complete a normal workweek without interruptions from psychologically based symptoms, accept instructions and respond appropriately to criticism from supervisors, and get along with co-workers or peers without distracting them or exhibiting behavioral extremes.” Because of these limitations, the examiner estimated that the Veteran’s impairments would cause him to be absent from work more than three times a month. However, despite these limitations, the record reflected that he was self-employed and worked as a floor installer. In this examination, he was also noted to be moderately limited in his attention, concentration, and his ability to interact appropriately with the general public. Despite classifying his stream of speech as “consistent with significant depression,” this examination later described it as clear, well-articulated, and “of normal rate and volume.” His memory was also determined to be normal, as he had no issues with the ability to remember locations and work like procedures. Further, the examiner determined that any impairment to perform ADLs was only limited during periods of significant stress. The Board finds that the medical evidence of record does not support a rating greater than 50 percent. Although the Veteran was noted to experience some limitations in work-related activities such as maintaining a schedule and interacting with others, the evidence showed that he was able to maintain employment and experienced only slight inabilities to perform ADLs. Further, the evidence showed that his memory and concentration were moderately limited at best and that his speech was not limited due to his mental disability. Turning to the lay evidence, in an April 2009 statement, the Veteran contended that his dysthymic disorder had hindered his ability to concentrate, meaning he was unable to learn a higher paying skillset. He also stated in a June 2010 VA examination that he had issues reading a book or instructions for long periods of time. In a December 2012 VA examination, he acknowledged some excessive worry “about everything” that impairs his functioning because it kept him “tossing and turning” at night. The Veteran’s June 2018 lay statement details various limitations he had experienced as a result of his dysthymic disorder. For example, he reported that he lacked self-motivation and would often spend days in bed without showering or brushing his teeth. He also contended that his disability had affected his work life, as he had not sought a job with more pay or more responsibilities due to his inability to adapt to stressful circumstances. The Veteran had never married and asserted that he had difficulties maintaining long term relationships. In his June 2018 lay statement, he stated that he always felt nervous around people and felt like he did not have the capabilities to interact with either strangers or people he had known for a long time. However, despite these contentions, the record reflects that he has a positive relationship with his sisters and had the same girlfriend for several years. The Board has considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, Layno v. Brown, 6 Vet. App. 465, 470 (1994), he is not competent to identify a specific level of dysthymic disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s dysthymic disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which dysthymic disorder is evaluated. Moreover, as the examiners and clinicians have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. Taken together, the evidence does not support a rating in excess of 50 percent for dysthymic disorder. The lay and medical evidence of record show that his dysthymic disorder has resulted in reduced motivation, professional limitations, and an inability to get a restful night’s sleep. However, his ability to perform ADLs without assistance, maintain relationships with his sisters and girlfriend, mild memory loss, lack of suicidal or homicidal ideation, coherent speech, organized thought processes, and fair concentration show that his dysthymic disorder has not resulted in the social or occupational impairment that would warrant a rating greater than 50 percent. Accordingly, the lay and medical evidence establish that he experiences symptoms like or similar to those associated with a rating no greater than 50 percent. Therefore, a rating in excess of 50 percent for dysthymic disorder is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ragofsky, Legal Clerk