Citation Nr: 1808577 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 07-34 678 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an evaluation in excess of 70 percent for major depression disorder (MDD) for the period beginning on June 4, 2009. REPRESENTATION Appellant represented by: Puerto Rico Public Advocate for Veterans Affairs ATTORNEY FOR THE BOARD B. N. Quarles, Associate Counsel INTRODUCTION The Veteran served on active duty August 1983 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2007 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. In January 2012 and February 2017, the Board remanded the appeal for additional development. The case has since returned to the Board. The Board notes that a higher rating (less than the maximum available benefit) has been granted for the Veteran's MDD during the pendency of this appeal. Because higher ratings for this disability are assignable during the relevant time period and the Veteran is presumed to seek the maximum available benefit, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Board also notes that the previous February 2017 remand and the subsequent June 2017 supplemental statement of the case incorrectly listed the issue of entitlement to an evaluation in excess of 50 percent for MDD prior to June 4, 2009. Although the Board inadvertently included this issue in its previous remand; the appeal was no longer before the Board at that point as the January 2012 Board decision denied the very issue. The January 2012 Board decision is final, and therefore, by law, the issue of entitlement to an evaluation in excess of 50 percent for MDD prior to June 4, 2009 is not on appeal and currently before the Board. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). FINDING OF FACT Beginning on June 4, 2009, all of the Veteran's symptoms for an acquired psychiatric disorder manifest as occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking and/or mood; total occupational and social impairment has not been shown. CONCLUSION OF LAW For the period beginning on June 4, 2009, the criteria for an evaluation in excess of 70 percent for an acquired psychiatric disorder are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321, 4.1 4.3, 4.7, 4.130, Diagnostic Code (DC) 9411 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION As a preliminary matter, the Board has reviewed the claims file and finds that there exist no deficiencies in VA's duties to notify and assist that would be prejudicial and require corrective action prior to a final Board determination. See 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2016); see also Bryant v. Shinseki, 23 Vet. App. 488 (2010) (regarding the duties of a hearing officer); Mayfield v. Nicholson, 20 Vet. App. 537 (2006) (corrective action to cure a 38 C.F.R. § 3.159(b) notice deficiency); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004) (timing of notification). The Board also notes that, to the full extent possible, VA complied with all prior remand instruction requests, and there exist no deficiencies in VA's duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand order); but see D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required). The Board notes that the Veteran waived agency of original jurisdiction review of new evidence in June 2017. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The criteria for a 70 percent rating are 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; or difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. The criteria for a 100 percent rating are 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); or disorientation to time or place; memory loss for names of close relatives, own occupation or own name. Id. Furthermore, as the United States Court of Appeals for the Federal Circuit (Federal Circuit) explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, 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. See 38 C.F.R. § 4.126(a). Furthermore, when evaluating the level of disability arising 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(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. The Veteran contends that her MDD warrants a rating in excess of the current 70 percent evaluation. However, after a review of the evidence of record, the Board finds that the preponderance of the evidence is against finding that the Veteran's MDD symptomatology has manifest to a degree warranting a rating in excess of 70 percent according to DC 9411. During the appeal period, the Veteran's MDD symptomatology included problems sleeping; anxiety; depressed mood; disturbances of motivation and mood; impaired impulse control; difficulty in adapting to stressful circumstances; inability to establish and maintain effective relationships; and suicidal ideations. The Veteran did not experience 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; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name as listed in DC 9411 for a 100 percent evaluation. The Veteran was afforded VA examinations in June 2009 and February 2017, and neither examiner determined the Veteran to experience total occupation and social impairment. In November 2009, the Veteran attempted suicide by overdosing on prescription medication. She was taken to the emergency room by her son and released after three days in the hospital. The February 2017 examiner noted there was still some persistence of suicidal ideations. During the examination, the Veteran reported to use a method she learned from a past psychiatrist which helped her to control her suicidal ideations. However, the remaining medical records are negative for reported suicidal ideations or suicide attempts by the Veteran. The June 2009 VA examiner noted non-persistent visual hallucinations; and two VA treatment notes from January 2012 and July 2012 noted "delusion of persecution." In light of the aforementioned evidence, the Board acknowledges the Veteran's record does show symptoms of suicidal ideation, hallucinations, and delusions. Suicidal ideation, of course, is part of the rating criteria, albeit for the currently assigned 70 percent rating. However, the evidence does not support finding the Veteran's symptoms demonstrate a "persistent danger of hurting self or others" or demonstrate "persistent delusions or hallucinations" in alignment with criteria listed under the 100 percent evaluation in DC 9411. Consequently, the Board does not find the 2009 suicide attempt, the one 2017 report of suicidal ideations, one report of hallucinations, and two reports on delusions in this context, are a sufficient basis to predicate a grant of an increased evaluation. In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas "-i.e.," the regulation requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9411. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. The Veteran has experienced occupational and social impairment in most areas, but the Board finds the level of occupational and social impairment experienced by the Veteran does not nearly approximate a 100 percent evaluation because total occupational and social impairment has not been shown. The Board has also taken into consideration the frequency, severity, and duration of the Veteran's symptoms, and finds the symptoms do not approximate a 100 percent rating. The Board has considered a total disability based on individual unemployability (TDIU), as a claim for increased compensation can encompass a claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). The Veteran was granted TDIU in June 2009, and therefore the issue of TDIU is moot. Furthermore, neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). ORDER Entitlement to a disability rating in excess of 70 percent for an acquired psychiatric disorder for the period beginning on June 4, 2009 is denied. ____________________________________________ A. C. MACKENZIE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs