Citation Nr: 1815909 Decision Date: 03/16/18 Archive Date: 03/23/18 DOCKET NO. 16-56 793 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a higher evaluation for manic depressive illness-depressed type reaction rated 50 percent prior to October 7, 2016, and 70 percent thereafter. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Vuong, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1951 to May 1953. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In an October 2016 rating decision, the RO granted an increase rating of 70 percent, effective October 7, 2016. As this compensable rating constituted less than the maximum benefit allowed by law and regulation, the claim remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. Prior to October 6, 2017, the Veteran's manic depressive illness-depressed type reaction did not manifest with symptomatology that causes deficiencies in most areas to include work, family relations, judgment, thinking, and mood. 2. Beginning October 6, 2017, the Veteran's disability has not manifested with symptomatology that causes total occupational and social impairment. CONCLUSION OF LAW The criteria for a higher evaluation for manic depressive illness-depressed type reaction rated 50 percent prior to October 7, 2016, and 70 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.14, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran seeks a higher rating for his manic depressive illness-depressed type reaction. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55(1994). The assignment of staged ratings is also appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The criteria for evaluating psychiatric disorders, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130 (2017). A 50 percent rating is assigned for 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9434 (2017). A 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Prior to October 7, 2016, VA treatment records show that the Veteran reported depression with varying mood, lack of energy, and nightmare/night terrors. See February 2014 VA treatment records. In March 2016 VA treatment records, the Veteran reported lack of energy and motivation, anhedonia, hypersomnolence, and anxiety. A mental status examination showed frustrated, depressed mood, and calm, reactive affect. The examination was otherwise non-remarkable in terms of orientation, thought process and content, and judgment. The Veteran was noted to be appropriately dressed and groomed. Occasionally, the Veteran has also reported severe depression and also that such depression prevented him from taking care of himself. See March 2014 VA treatment records; see also January 2016 VA treatment records. On other occasions, the Veteran reported good mood and improved energy, appetite, and sleep. See VA treatment records from October 2013 and April 2016. Additionally, VA treatment records indicate that the Veteran has a strong relationship with his wife of over 30 years. He also maintains contact with his children and other family members. See April 2013 and April 2014 VA treatment records. The Veteran also participated in a number of activities and hobbies, to varying degree, including model building, using computers, reading, solving puzzles, playing musical instruments and riding his bike. See June 2016 VA treatment records. At a VA examination in June 2014, an examiner noted that the Veteran had been married to his second wife for 36 years and has relationships with his adult children and sister. The examiner also noted that the Veteran stays busy by playing the organ, visiting gambling boats, being out in the water, and watching shows. He also maintained contact with some friends. The examiner noted that the Veteran worked for 33 years as an engineer before retiring. The Veteran also reported that his medications had significantly reduced his symptoms. On mental status examination, the examiner endorsed symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood. The examiner further observed that the Veteran is anxious and mildly dysphoric without other abnormal behavior. The examiner concluded that the Veteran's psychiatric disorder caused occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although he was generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran underwent another VA examination on a fee-basis in October 2016. In the disability benefits questionnaire (DBQ), the examiner noted he had conducted review of the claims file and an interview with the Veteran. The Veteran reported that he is down all of the time and has depressed moods, low motivation and energy, feelings of worthlessness, and crying spells. He denied manic symptoms. The Veteran reported that when his health was better, he had high energy and played sports. The Veteran denied suicidal ideation or psychosis. The examiner endorsed symptoms of depressed mood, anxiety, panic attacks more than once per week, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and neglect of personal appearance and hygiene. On mental status examination, the examiner observed that the Veteran was in an irritable mood; his affect was flat and withdrawn. His concentration was fair and memory was intact. The examiner also noted coherence of thought and goal-oriented processes, without evidence of hallucination or delusion. The examiner concluded that the Veteran's symptoms were productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. After reviewing the evidence, the Board finds that higher ratings in excess of 50 and 70 percent are not warranted at any time during the appeal. Symptoms indicative of a 70 percent rating include occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Prior to October 7, 2016, the Veteran symptoms included depression and depressed mood, anxiety, chronic sleep impairment, excessive irritability, low energy and motivation, flattened affect, and disturbance of mood. These symptoms did not produce deficiencies in most areas. There is no indication of suicidal ideation, obsessional rituals, speech abnormalities, impaired impulse control, spatial disorientation, difficulty in adapting to stressful circumstances, and inability to establish or maintain effective relationships. The VA treatment records reflect that the Veteran was consistently observed to have fair or normal thought process and content, without paranoid ideation or delusions. While the Veteran subjectively reported that on occasional his depression was so severe as to cause him to "stop taking care of himself;" the VA treatment records reflect that he was consistently observed to be generally well-groomed upon evaluation. While the Veteran also reported that on occasional his depression was severe enough to interfere with his mood and 'do things,' the cumulative evidence does not support a finding of near-continuous panic or depression that interfered with his ability to function independently. Rather, he is noted to have engaged in numerous individual hobbies and also traveled out of state for pleasure. He reported to the VA examiner in June 2014 that he and his wife take a trip on a gambling boat annually. He also visits his children and sister. There was no evidence that the Veteran required any assistance other than for his physical impediments. Moreover, the 2014 VA examiner who reviewed the Veteran's past treatment records, as well as interviewed and evaluated the Veteran, determined his psychiatric symptoms resulted in no more than a moderate degree of social and occupational impairment overall. The VA examiner's assessment is highly probative because he has the training, expertise and knowledge to evaluate the Veteran's psychiatric disorder and was familiar with the Veteran's history. In short, the record does not show symptoms of the severity, duration, or frequency reflective of a deficiency prior to October 7, 2016 for a 70 percent rating. Beginning October 7, 2016, the Veteran's manic depressive illness-depressed type reaction has not more nearly approximated total social and occupational impairment. Symptoms of a 100 percent rating include gross impairment of thought process and communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting oneself or others, intermittent inability to perform activities of daily living, disorientation to time or place, and loss of memory for names of close relative, own occupation, or own name. The evidence does not support a finding that such symptomatology occurred with such frequency, duration, or severity as contemplated for the assignment of a 100 percent disability rating. For example, the Veteran denied suicidal or homicidal ideation and no history of inpatient treatment. There is no evidence that he was in danger of hurting self or others as contemplated in the 100 percent rating; a fact specifically noted by the 2016 VA fee-basis examiner. Treating VA clinicians have not found him to be a danger to himself or others as well. The Veteran has shown the ability to maintain close social relationships with his wife, sister, and children. He also has maintains relationships with some friends. There is no history of persistent delusions or hallucinations, grossly impaired thought process or communication, or disorientation to time or place. He has neither asserted, nor does the evidence reflect loss of memory for names of close relatives or his own name. Therefore, evidence does not more nearly approximate the criteria for a rating of 100 percent. The preponderance of the evidence is against the assignment of rating higher than 50 percent prior to October 7, 2016, or higher than 70 percent thereafter. Accordingly, there is no reasonable doubt to resolve. See Gilbert v. Derwinski, 1 Vet. App.49, 55 (1990). There are no additional expressly or reasonably raised issues presented on the record. ORDER A higher evaluation for manic depressive illness-depressed type reaction rated 50 percent prior to October 7, 2016, and 70 percent thereafter is denied. ____________________________________________ D. JOHNSON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs