Citation Nr: 18161104 Decision Date: 12/28/18 Archive Date: 12/28/18 DOCKET NO. 13-33 352 DATE: December 28, 2018 ORDER A disability rating of 70 percent, but no higher, for major depressive disorder with posttraumatic stress disorder (PTSD) (hereinafter “psychiatric disability”), prior to May 15, 2014, is granted. FINDING OF FACT The Veteran’s psychiatric disability has been manifested by depressed mood, difficulty maintaining effective social relationships, recurrent thoughts of death, and fleeting suicidal thoughts, and is more nearly approximated by occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating of 70 percent, but no higher, for psychiatric disability prior to May 15, 2014, have been met. 38 U.S.C § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.21, 4.126, 4.130, Diagnostic Code 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1947 to January 1950 and from June 1950 to September 1953. The Veteran died in June 2016. The Appellant is the Veteran’s surviving spouse. This matter comes to the Board of Veterans’ Appeals (Board) from a May 2011 rating decision which granted service connection for major depressive disorder, claimed as posttraumatic stress disorder (hereinafter “psychiatric disability”), evaluated at 30 percent, effective May 12, 2010. In a July 2014 rating decision, the RO granted an increased 70 percent rating for the Veteran’s psychiatric disability, effective May 15, 2014. In May 2017, the Appellant and K.H. testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing. A copy of the transcript is of record. In January 2018, the Board denied, in pertinent part, entitlement to a disability rating in excess of 30 percent prior to May 15, 2014, and in excess of 70 percent thereafter, for the Veteran’s psychiatric disability. The Veteran appealed only the portion of the Board’s decision denying entitlement to an increased disability rating prior to May 15, 2014, to the U.S. Court of Appeals for Veterans Claims (Court). In June 2018, pursuant to a Joint Motion for Partial Remand (JMR) filed by the parties, the Court vacated the Board’s decision pertaining to the increased rating prior to May 15, 2014, and remanded the issue back to the Board for adjudication consistent with the terms of the JMR. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, such as for the service-connected psychiatric disability in this case, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial disability rating in excess of 30 percent for major depressive disorder with posttraumatic stress disorder (PTSD) (hereinafter “psychiatric disability”) prior to May 15, 2014. The Veteran contends that a higher rating is warranted for his service-connected psychiatric disability prior to May 15, 2014. The Veteran’s psychiatric disability is evaluated at 30 percent disabling under Diagnostic Code (DC) 9411 of the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9411. 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 on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA also 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(b). Under the applicable rating criteria, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent disability 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 disability rating is warranted for 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. Finally, a 100 percent disability rating, the maximum available, 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria 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, 16 Vet. App. at 436. Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. In Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017), the Court held that, given that the Diagnostic and Statistical Manual for Mental Disorders, Fifth Edition (DSM-5) abandoned the Global Assessment of Functioning (GAF) scale and that VA has formally adopted the DSM-5, GAF scores are inapplicable to assign a psychiatric rating in cases where the DSM-5 applies when the appeal was certified after August 4, 2014. This claim was certified to the Board in January 2015, after August 4, 2014; thus, in this case, the DSM-5 applies and GAF scores are inapplicable. 80 Fed. Reg. 14, 308 (March 19, 2015). In this case, the Board considers whether a disability rating in excess of 30 percent for a psychiatric disability is warranted at any time prior to May 15, 2014. Turning to the evidence of record, private treatment records reflect that in January 2010, the Veteran reported that his mood had been poor and he felt despondent. His physician noted a history of underlying depression and prescribed the Veteran Effexor. In February 2010, the Veteran reported he felt better or same, but his medication was increased. A March 2010 VA psychiatry consult notes past depression, sadness, and low energy, but that the Veteran reported that suicide was not an option for him. April and September 2010 VA psychiatry notes reflect that the Veteran reported feeling depressed most of the day, with diminished interest in pleasurable activities. He reported that his younger wife was causing disharmony around the household finances. Upon examination, the Veteran’s mood was good, affect bright, speech was normal, and there was no suicidal or homicidal ideation. However, significant weight change, insomnia or hypersomnia, psychomotor agitation or retardation, fatigue, low energy, feelings of worthlessness or hopelessness, guilt, diminished concentration or thinking, increased indecisiveness, and recurrent thoughts of death with or without a suicidal plan were noted. In September 2010, he reported feeling well on his antidepressant medication, he was sleeping and eating, his mood was good, and his irritability was much improved. The Veteran was afforded a VA examination in April 2011. The Veteran reported that his marriage of 51 years ended in 2003 when his wife died, but that he remarried the same year. He reported that his current marriage was “touch and go” and sometimes strained, as she was 29 years younger than him and wanted to be much more active and they did not get along well because of their differences. He reported that his relationship with his family was good, and he was in contact with them, though it was harder as his family was busy with their own lives. He reported that he did not do a lot with others because most of his friends had passed away. Upon examination, the Veteran appeared clean with the ability to maintain minimum personal hygiene and was cooperative, friendly, and relaxed. Speech was unremarkable, affect was normal, and mood was good. Attention and orientation was intact, memory was normal, with unremarkable thought process and content. The Veteran denied delusions, hallucinations, and homicidal and suicidal ideations and he understood the outcomes of his behavior. Intelligence was average and the Veteran understood he had a problem. The Veteran reported nightmares and sleep problems at times, but that medication helped. The examiner diagnosed the Veteran with major depressive disorder and assigned a GAF score of 55 based on struggles with depression and anger. The examiner found occupational and social impairment, based upon his relationship with his wife, that he had quit his job a year earlier than retirement age due to feeling burned out, depression, and anxiety that he blamed on a plane crash in service, as well as hallucinating/hearing people in the crash, for which he took an antipsychotic. The examiner found that the Veteran did not have significant avoidance behaviors, significant distress or functional impairment in social, occupational or other areas and that he was able to work and support a family up until the time he retired and that he was married for over 50 years. A November 2011 VA examination report reflects that the Veteran reported being prescribed antidepressants for many years, and that in the past year his irritability decreased and that his medication had calmed him down. He reported fleeting suicidal thoughts with no clear plan or intent. He reported that he enjoyed housework. The Veteran presented as euthymic and appropriate in mood and affect. Although somber at times, he responded appropriately to humor and other mood checks. He was well groomed and dressed, and exhibited intact orientation. Behaviors were within normal limits. Screenings for memory, aphasia, agnosia, judgment, abstraction, apraxia, and sequencing were insignificant. The examiner found symptoms of depression, but noted that despite the Veteran’s reported problems, his fortitude was notable. He continued to improve his functioning by taking prescribed medications, changing his diet, and maintaining a positive attitude, thereby reducing any clinically significant impairment across settings. The examiner found that the Veteran was experiencing occupational and social impairment due to mild or transient symptoms which decreased his work efficiency and ability to perform occupational tasks only during periods of significant stress or that his symptoms were controlled by medication. VA treatment records dated in July 2012, October 2013, and January 2014 reflect that the Veteran reported having some issues with his wife, they fought over little things, and that it was a wonder they had not killed each other because they fought like cats and dogs. He reported that he and his wife were no longer in love, that he was having difficulty with his children due to his marriage, and that his youngest daughter had disowned him. Mood and affect ranged from good and bright to blunted and flat. Thought processes were linear, logical, and futuristic, but mildly ruminative. There was no evidence of delusions or hallucinations. Insight was fair and judgment good. The Veteran denied homicidal/suicidal ideations. Based upon the evidence of record, including that specifically discussed above, the Board concludes that a disability rating of 70 percent is warranted. Specifically, the evidence reflects that the Veteran reported depressed mood, feeling despondent and hopeless, had difficulty maintaining effective work and social relationships, and reported recurrent thoughts of death and fleeting thoughts of suicide. The Board notes that thoughts of suicidal ideation are only considered in a 70 percent disability evaluation. There are no analogues at the lower evaluation levels. See Bankhead v. Shulkin, 29 Vet. App. 10, 20-21 (2017) (precedential panel decision). Thus, under the General Formula for Rating Mental Disorders at 38 C.F.R. § 4.130, “the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. at 20 (2017). Evidence of more than thought or thoughts of ending one’s life to establish the symptom of suicidal ideation, is not required. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm in order to establish the criteria of suicidal ideation. Bankhead, 29 Vet. App. 20-21. Accordingly, the Board finds an increased 70 percent evaluation is warranted. While the frequency and severity of the symptoms of the Veteran’s psychiatric disability fluctuated and there are times which suggest the condition may not even rise to the level contemplated by a 70 percent rating, resolving all doubt in the Veteran’s favor, the 70 percent evaluation is appropriate. A higher 100 percent schedular rating is not warranted at any time during the appeal period. The Veteran’s psychiatric disability manifested a range of symptoms, but those most frequently emphasized by the Veteran were depressed mood, difficulty maintaining effective relationships, recurrent thoughts of death and fleeting thoughts of suicide. The evidence does not show any indication of total social or occupational impairment that more nearly approximates a 100 percent disability rating due to his psychiatric symptomatology based on review of treatment records, VA examination reports, and the Veteran’s lay statements. Objective examinations and treatment records document the Veteran has demonstrated appropriate dress and grooming, alertness and orientation, and fair insight and judgment. Additionally, he denied hallucinations and while he presented with thoughts of death or suicide, he was never described as being a danger to himself or others. The Veteran’s symptoms have never been shown to be so frequent or disabling that they rise to the level of total occupational or social impairment, which is a level of severity so disabling that some of the examples of symptoms include not knowing one’s own name or posing a persistent threat of danger to self or others. See Mauerhan, 16 Vet. App. at 442 (finding that symptoms contained in rating schedule criteria 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”). Thus, the Board finds that an increased disability rating of 70 percent, but no higher, prior to May 15, 2014, is warranted for the Veteran’s service-connected psychiatric disability in this case. See 38 C.F.R. § 4.130, Diagnostic Code 9411. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Owen, Associate Counsel