Citation Nr: 18159119 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 16-56 496 DATE: December 18, 2018 ORDER Entitlement to a rating in excess of 70 percent for depressive disorder with anxious distress prior to March 5, 2016 is denied. Entitlement to a total rating based on individual unemployability (TDIU) due to service-connected depressive disorder with anxious distress prior to October 7, 2014, is denied. FINDINGS OF FACT 1. For the period from November 4, 2012, to March 5, 2016, the Veteran’s service-connected depressive disorder with anxious distress was manifested by symptoms which caused occupational and social impairment with deficiencies in most areas; the symptoms did not cause total occupational and social impairment. 2. For the period from November 4, 2012, to October 7, 2014, the Veteran’s service-connected depressive disorder did not render her unable to secure or follow substantially gainful employment. CONCLUSION OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for depressive disorder with anxious distress prior to March 5, 2016 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.16, 4.17, 4.130, Diagnostic Code 9440 (2017). 2. The criteria for entitlement to a TDIU due to the service-connected depressive disorder with anxious distress prior to October 7, 2014, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 3.1010, 4.1, 4.2, 4.3, 4.10, 4.15, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 2001 to March 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which continued the assignment of a 50 percent rating for the Veteran’s service-connected anxiety disorder and personality disorder. Before the appeal was certified to the Board, in a November 2016 rating decision, the RO recharacterized the Veteran’s service-connected psychiatric disability as depressive disorder with anxious distress and increased the rating for that disability to 70 percent, effective November 4, 2012, the date of receipt of her claim for an increased rating, and to 100 percent, effective March 5, 2016. The RO also granted a total rating based on individual unemployability (TDIU) due to the service-connected psychiatric disability, effective October 7, 2014. As a preliminary matter, the Board notes that, although an increased rating for the Veteran’s service-connected psychiatric disability was granted, the issues of entitlement to a rating in excess of 70 percent for depressive disorder with anxious distress prior to March 5, 2016, to include the issue of entitlement to TDIU prior to October 7, 2014, remain in appellate status, as neither did the RO assign the maximum rating during the entire period on appeal, nor has the Veteran withdrawn her appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a rating decision issued after a notice of disagreement that grants less than the maximum available rating does not “abrogate the pending appeal”). The Veteran seeks entitlement to a rating in excess of 70 percent for depressive disorder with anxious distress prior to March 5, 2016. Disability evaluations are determined by the application of a schedule of ratings, which is based on the Veteran’s average impairment of earning capacity resulting from such disabilities. 38 U.S.C. § 1155, 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. The basis of disability evaluations is the ability of the body to function under the ordinary conditions of daily life, including employment. Evaluations are based upon lack of usefulness of the part or system affected, especially in self-support. 38 C.F.R. § 4.10 (2017). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether the [initial] rating on appeal was erroneous...” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. Where, as here, a claimant appeals the denial of a claim for an increased rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Where VA’s adjudication of the claim for increase is lengthy, and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, “staged,” ratings may also be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). 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. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3 (2017). The Veteran’s depressive disorder with anxious distress has been rated under the criteria contained in the General Rating Formula for Mental Disorders. Under those criteria, a 70 percent rating is assigned 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 worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9440. A 100 percent 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, memory loss for names of close relatives, own occupation, or own name. Id. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the U.S. Court of Appeals for Veterans Claims (Court) held that 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. Accordingly, the evidence considered in determining the level of impairment under section 4.130 is not restricted to the symptoms provided in the diagnostic code. Rather, 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 American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders. More recently, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) held that “a veteran may only qualify for a given disability rating under § 4.130 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, 116 (Fed. Cir 2013). The Federal Circuit explained that in the context of a 70 percent rating, section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 118. The Federal Circuit indicated that “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. The Board notes that effective August 4, 2014, VA implemented rules replacing references to the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) IV with the DSM-5. The DSM-5 applies to claims certified to the Board on and after August 4, 2014. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). The Veteran’s appeal was certified to the Board in December 2016. Consequently, the DSM-5 is for application. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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(b) (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). A review of the record shows that in November 2012, the Veteran submitted a claim for an increased rating for her service-connected psychiatric disability. She indicated that she was continuing to have panic attacks and that she had recently had a panic attack at work after her boss verbally abused her. She indicated that she could lose her job due to her disability. In support of her claim, the Veteran submitted an October 2012 accident report on which she indicated that she had suffered a panic attack after her boss called her cell phone and verbally abused her over the phone. Clinical records show that she visited the emergency room for treatment. It was noted that she was feeling better and had no suicidal or homicidal thoughts. In support of her claim, the Veteran submitted a March 213 private psychological evaluation report. With regard to marital and family relationships, the Veteran reported that she had previously been married for 5 ½ years, had an ex-boyfriend who had beaten her, and that she was currently dating. The Veteran noted that she did not have many friends in person, only on Facebook. She noted having a good relationship with her 2 brothers, however, she noted that she did not speak with her sister. She also noted relationships with her parents and grandmother and reported seeing her family daily as they lived nearby. She reported enjoying crafts, keeping her house clean, walking her dogs, and visiting her parents. She also noted that she was enrolled in an on-line pre-calculus course. Occupationally, the Veteran had been employed for 1 ½ years as a respiratory therapist at a hospital. She reported enjoying her work and getting along with co-workers until an incident occurred in which the Veteran’s supervisor yelled at her, which she claimed caused her to have a panic attack. The examiner noted that the Veteran suffered from panic attacks every week due to her work situation and that the Veteran’s panic attacks were at an all-time high. However, the examiner noted that the Veteran had not missed work due to panic attacks and that the Veteran only noted psychological problems when her supervisor yelled at her. On examination, Veteran was found to be oriented in all spheres, did not exhibit difficulty in retrieving information or with word finding, usage, or sentence structure. The examiner noted that the Veteran maintained hygiene, was able to handle money, and pay her bills. Additionally, the Veteran’s concentration was good, she was focused and had no problems with memory, she was able to understand and follow instructions at work, and she was able to get her job done. The examiner also noted that the Veteran was angry, switching quickly between anger and emotional distress, had trouble controlling her thoughts and emotions, and believed there was a conspiracy against her, without evidence of visual or auditory hallucinations. Occasional suicidal thoughts were noted. In May 2013, the Veteran underwent a VA examination. The examiner noted the Veteran’s diagnosis to be adjustment disorder with mixed anxiety and depressed mood and borderline personality disorder. The examiner noted that the Veteran’s first psychiatric treatment was due to a miscarriage and difficulty coping in the military. With regard to family relationships, the Veteran reported that she was not involved in a romantic relationship and did not have children. She reported taking care of her grandmother. She also reported that she got along with her two brothers and kept in regular contact with her parents. She noted that she did not get along with her sister. Occupationally, the Veteran reported loving her career as a respiratory practitioner. However, she noted panic attacks due to her supervisor yelling at her and reported that she believed her supervisors were attempting to fire her. The Veteran’s depressive disorder with anxious distress symptoms included depressed mood, anxiety, panic attacks that occurred weekly or less often, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships. With regard to effects of depressive disorder with anxious distress on occupational and social functioning, the examiner concluded that the Veteran’s symptoms caused reduced reliability and productivity. A December 2013 psychotherapy note reported the Veteran’s symptoms to include depressed mood, crying spells, insomnia, irritability, agitation, and decreased energy. Medication for the Veteran’s symptoms was also noted. Additionally, conflict in work relationships was noted. The Veteran was found to be well-groomed, pleasant and cooperative, and affect was appropriate to mood. Thought process and content, orientation, attention, concentration, memory, and fund of knowledge were normal. Impulse control, insight, and judgment were fair although the Veteran was noted to be tearful and fidgety. A March 2014 letter from the Veteran’s psychiatrist to the Veteran’s employer noted an increase in the Veteran’s psychological symptoms and requested a change from day shifts to evening-only or night shifts. A March 2014 entry in the Veteran’s private medical records note a telephone call in which the Veteran reported having thoughts of harming herself. See March 2014 private medical records. Follow-up psychotherapy notes reported the Veteran’s suicidal ideation to be passive ideation only. The Veteran was reported to be depressed, but she had no plan or intent to hurt herself. See March 2014 private psychotherapy notes. In correspondence dated April 2014, the Veteran reported that her mental state was declining because of her work situation, which was causing increased anxiety and causing her to take more medication. She also noted continued sleep problems. She stated that she looked nice when she went to work or doctor’s appointments, however she reported that she showered approximately 4 times per month. Additionally, the Veteran noted that she had not had a successful romantic relationship in over 3 years. The Board notes that the Veteran submitted documentation from her employer noting that she had been put on administrative leave by her employer in April 2014. See April 2014 memorandum. The reasons for the administrative leave were not noted. The Board also notes that the Veteran reports that she was terminated from employment in October 2014. See Veteran’s correspondence dated May 2016. In May 2016, the Veteran submitted an application for TDIU. She indicated that she had last worked full time on October 6, 2014, and felt that she was unable to hold work any longer due to depression and anxiety. She indicated that she had completed college and had a Masters degree in school psychology. She indicated that she had tried to participate in vocational rehabilitation but was told she was too disabled. Suicide and aggression screenings from 2015 noted that the Veteran did not have thoughts of harming herself. See VA treatment records March, May, and October 2015. A January 2016 mental health note reported that the Veteran had recently delivered a baby and was not getting along with her boyfriend, the baby’s father. The Veteran reported no incidences of aggression to self or others or destruction of property and no active suicidal ideation. She reported not having adequate sleep at night, but she reported fair family support and no new psychosocial stressors. It was also noted that the Veteran had feelings of hopelessness and helplessness and occasional crying spells, however the Veteran reported that she was staying active by going to school and doing an internship. See January 2016 mental health note. Applying the criteria set forth to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent for the Veteran’s service-connected depressive disorder with anxious distress prior to March 5, 2016. The Veteran’s depressive disorder with anxious distress was not shown to result in total occupational and social impairment at any time prior to March 5, 2016. As noted earlier, the Veteran did not suffer from gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Specifically, the medical evidence of record demonstrates, as detailed previously, that the Veteran was able to communicate, did not exhibit difficulty with retrieving information or with word finding, usage, or sentence structure. Additionally, the Veteran was able to understand and follow instructions during her time of employment and did not have problems with handling money or paying her bills. Although the Veteran believed that there was a conspiracy against her at her place of employment, as noted in the March 2013 private psychological evaluation, she was not found to have either visual or auditory hallucinations. Additionally, the medical evidence of record does not contain reports of delusions or hallucinations. As noted previously, the Veteran’s symptoms included depression, anxiety, anger, panic attacks, crying spells, insomnia, irritability, agitation, and decreased mood. The March 2013 private psychological evaluation noted that impulse control was fair, and the medical evidence of record does not note grossly inappropriate behavior. The evidence also shows that the Veteran was oriented to time, place, and person and memory was also found to be normal. The evidence of record also indicates that the Veteran was not in persistent danger of hurting herself or others. The March 2013 private psychological evaluation noted occasional suicidal thoughts. Although the medical evidence notes a telephone call in March 2014 in which the Veteran reported having thoughts of hurting herself, follow-up psychotherapy notes indicate that the Veteran had passive ideation and no plan or intent to hurt herself. As noted above, 2015 suicide screenings noted that the Veteran did not have thoughts of harming herself; a January 2016 mental health note reported no incidences of aggression to self or others and no active suicidal ideation. Suicidal ideation is contemplated in the 70 percent rating; as the Veteran’s suicidal ideation does not rise to the level of persistent danger of hurting oneself or others, a 100 percent rating is not appropriate based on this symptom. The Board notes the Veteran’s statement that she showered approximately 4 times per month, however she reported looking nice when she went to work or doctor’s appointments. Based on the medical evidence of record, the Board finds that Veteran was able to maintain minimal personal hygiene. The March 2013 private psychological evaluation noted that the Veteran maintained hygiene. Additionally, mental health notes from 2011 to 2015 noted no signs of personal neglect. See PAVAMC mental health notes 2011-15. Notwithstanding, the Board finds that Veteran’s reports of showering 4 times per month are already contemplated in the assignment of the 70 percent rating. Additionally, although the Veteran was terminated from her employment in 2014, tax documents show that the Veteran worked intermittently for a local school district as a substitute teacher in 2015. See 2015 W-2. Although this employment was marginal, during a January 2016 mental health appointment, the Veteran also reported that she had been attending school and had an internship. Furthermore, the Veteran described having a relationship with her grandmother, who she reported to take care of, her 2 brothers, and her parents. The Veteran also noted having a boyfriend, who was the father of her young child. These relationships indicate that the Veteran did not suffer from total social impairment. In summary, the Board has considered all of the Veteran’s symptoms associated with her service-connected depressive disorder with anxious distress disability that affect the level of occupational and social impairment. After so doing, the Board concludes that the 70 percent rating assigned prior to March 5, 2016 is appropriate and that the preponderance of the evidence is against the assignment of a rating in excess of 70 percent. Again, the Board is cognizant that the Veteran has not maintained full time employment since October 2014. However, the record shows, and the Veteran does not dispute, that she is able to maintain friendships and familial relationships. Thus, the evidence does not show total occupational and social impairment due to her service-connected psychiatric disability. Thus, neither the symptoms nor overall level of impairment meet the criteria for a 100 percent schedular rating prior to March 5, 2016. Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is considered part and parcel of an increased rating claim when the issue of unemployability is raised by the Veteran or record. As noted previously, TDIU was granted effective October 7, 2014. Thus, the Board has considered the Veteran’s entitlement to a TDIU prior to October 7, 2014, but finds that the preponderance of the evidence is against the claim. The evidence of record shows that the Veteran was employed full-time as a staff respiratory therapist until she was terminated from employment in October 2014. See January 2012 performance appraisal; see also Veteran’s Application for Increased Compensation Based on Unemployability dated May 2016. As the Veteran was not shown to be unable to maintain substantially gainful employment prior to October 7, 2014, due to her service-connected psychiatric disability prior to that time, a TDIU is not warranted. K. Conner Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Ruddy, Associate Counsel