Citation Nr: 18159232 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-56 336 DATE: December 19, 2018 ORDER A 50 percent rating for depression NOS, opioid dependence on agonist treatment, benzodiazepine dependence associated with L1 fracture, lumbar spine is granted. FINDING OF FACT Depression NOS, opioid dependence on agonist treatment, benzodiazepine dependence associated with L1 fracture, lumbar spine is manifested by depression, chronic sleep impairment, and disturbances of motivation and mood, productive of no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating of 50 percent, but no higher, for depression NOS, opioid dependence on agonist treatment, benzodiazepine dependence associated with L1 fracture, lumbar spine have been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2006 to June 2007. 1. Entitlement to a rating in excess of 30 percent for depression NOS, opioid dependence on agonist treatment, benzodiazepine dependence associated with L1 fracture, lumbar spine Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule 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 the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007). This practice is known as staged ratings. Id. If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran is rated under DC 9434, which is rated according to the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when there is “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.” Id. A 70 percent rating is warranted 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 work like setting); inability to establish and maintain effective relationships.” Id. 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 name.” Id. The “such symptoms as” language means “for example,” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117. Throughout the period on appeal the Veteran reported chronic sleep impairment, disturbances of motivation and mood, increased pessimism, and a decreased capacity to show affection or laugh. In an April 2017 statement, the Veteran’s mother reported that he is bored and lethargic, and that his feelings of despondency threaten his feelings toward his friends. She stated that he does not help with chores and that his sleep pattern is “way off.” In a July 2017 statement, the Veteran’s father reported that the Veteran suffers from loss of sleep, has a shortened attention span and lowered self-motivation. He also stated that the Veteran often recedes from interactions at family gatherings and has more saddened moods than happy days. The Veteran underwent examination in December 2015. The examiner stated that the Veteran did not exhibit any symptoms attributable to either his opioid use disorder or anxiolytic use disorder, as he had abstained from those substances for the prior 90 days. Symptoms attributable to unspecified depressive disorder were noted as depressed mood, anxiety, and disturbances of motivation and mood. The Veteran reported being in a relationship and living with his girlfriend. He stated that he had few close friends, and that his closest social support was his girlfriend and parents. He reported spending free time writing or playing basketball. The examiner reported that the Veteran was appropriately dressed and groomed, alert and oriented fully, and cooperative. He exhibited no problems with attention, concentration, or memory. He denied suicidal or homicidal ideation. His thought processes were linear and logical, and there was no evidence of delusions or hallucinations. The Board finds that the Veteran’s symptoms during this period warrant a rating of 50 percent. The Veteran consistently reported decreased motivation and mood, as well as lack of close social relationships. The Veteran reported at his December 2015 examination that he had few close friends, and that his social support was only his girlfriend and parents. He indicated that this was a stark change from his life previously. His parents reported that he had low motivation and chronic sleep impairment. They likewise both indicated that the Veteran has difficulty with maintaining social relationships, both with friends and with family members outside of his parents. The Board finds these symptoms result in occupational and social impairment with reduced reliability and productivity. To warrant a 70 percent rating, the Veteran’s symptoms would need to be severe enough to cause occupational and social impairment with deficiencies in most areas. That has not been shown here. The Veteran has maintained relationships with his parents and with a few friends. He expresses interest in hobbies despite overall decreased motivation. His judgment and thought processes have remained unimpaired. While his symptoms are significant, they do not rise to the level of occupational and social impairment with deficiencies in most areas. Therefore, a rating in excess of 50 percent is not warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel