Citation Nr: 19106902 Decision Date: 01/30/19 Archive Date: 01/29/19 DOCKET NO. 15-12 070 DATE: January 30, 2019 ORDER Entitlement to a rating in excess of 30 percent for depression is denied. FINDING OF FACT The Veteran’s depressive disorder is characterized by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria are not met for a rating in excess of 30 percent for depressive disorder. 38 U.S.C. §§ 1155, 5107(b) (West 2012); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2007 to February 2007. 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 (2012); 38 C.F.R. § 4.1 (2017). The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3 (2017). The Veteran has been assigned a rating of 30 percent for her service-connected depressive disorder under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. Under DC 9434, which is governed by a General Rating Formula for Mental Disorders, a 30-percent 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. A 50-percent rating is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70-percent rating 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); inability to establish and maintain effective relationships. Id. A 100-percent rating is warranted 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The Veteran was scheduled for a VA examination in February 2011 in connection with her claim for service connection for this disorder. At that time, the Veteran reported her depression arose due to the increasing difficulties with her hip disabilities and she was taking medication for her depression. She reported suicidal thoughts in 2007, but did not act on them. The Veteran endorsed symptoms such as depressed mood, crying, irritability, agitation, anxiety, difficulty concentrating, social isolation, diminished energy level, feelings of inadequacy, weight fluctuation, and difficulty falling/ remaining asleep. Upon mental status examination, the examiner noted the Veteran appeared to be a “sad looking woman” but had good eye contact. Speech and thought processes were slowed and psychomotor retardation was noted. The Veteran was oriented in all spheres. Memory function was good, with no evidence of a memory deficit. The Veteran’s mood and affect was anxious and sad. Insight and judgement were good. The examiner determined the Veteran was not acutely suicidal, homicidal, violent, psychotic, manic, hypomanic, obsessive, or compulsive. A diagnosis of continuous, moderate depressive disorder was provided. The Veteran was reexamined in May 2017 to determine the current severity of her diagnosed depressive disorder. At that time, the Veteran endorsed the symptoms of depressed mood, chronic sleep impairment, disturbances in motivation, and difficulty in establishing and maintaining relationships. Upon mental status examination, the examiner noted the Veteran was appropriately dressed and groomed for the occasion, and displayed good eye contact. She presented with normal sleep pattern, rate, rhythm and normal content. The Veteran’s affect was mild depressed and her cognition was intact. The examiner ultimately concluded the Veteran has mild depressive disorder characterized by occupational and social impairment due to mild or transient symptoms. Also of record are VA treatment records showing the Veteran’s treatment for depression throughout the appeals period. However, there is no evidence in the VA treatment records do not indicate the Veteran’s service-connected depression is more severe than the findings noted in the February 2011 and May 2017 VA examinations. The Board has reviewed all of the evidence of record pertinent to this claim, but finds that a rating in excess of 30 percent is not warranted for the service-connected depressive disorder at any point during the appeals period. The Board notes that the symptoms recited in the criteria in the rating schedule for evaluating mental disorders 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 v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Turning first to a consideration of the Veteran’s symptoms, the Board finds they are not of the frequency, severity, and duration to cause occupational and social impairment with reduced reliability and productivity. The Veteran’s reported symptoms include depressed mood, crying, irritability, agitation, anxiety, difficulty concentrating, social isolation, diminished energy level, feelings of inadequacy, weight fluctuation, and difficulty falling/ remaining asleep. There is no evidence of panic attacks. Further, the May 2017 VA examiner specifically found that the Veteran’s depressive disorder symptoms are mild. As to the level of occupational and social impairment the Veteran experiences as a result of her service-connected depression, the Board notes the Veteran is currently unemployed. The February 2011 VA examiner indicated that the Veteran was cognitively able to understand and complete tasks, but consideration would need to be given to her physical limitations. The May 2017 VA examiner did not provide any comment on this aspect. In fact, the Veteran herself has stated that her employability issues are related to her physical disabilities. Based on the frequency, severity, and duration of the Veteran’s depressive disorder symptomology, the Board finds there is no evidence to support the assignment of an initial rating in excess of 30 percent. As mentioned above, in order to receive the next higher 50-percent rating, the evidence must show that 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. As noted above, while there is some overlap in the Veteran’s reported symptomatology, namely, the reported difficulty in establishing and maintaining effective work and social relationships, the VA examiners found her overall severity to be mild or, at most, moderate. Moreover, the Veteran does not exhibit the other symptoms such as flattened affect, memory impairment, or impaired thinking of a sufficient severity, frequency, or duration to warrant the assignation of a 50-percent rating. Further, the Veteran’s level of impairment as a result of her depressive disorder does not rise to the level of the 70 or 100-percent ratings. In fact, while the Veteran admitted to having suicidal ideation in 2007, she has not indicated that such thoughts arose again. Further, she has never endorsed such symptoms as homicidal 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); inability to establish and maintain effective relationships; 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; or memory loss for names of close relatives, own occupation, or own name. In claims seeking higher ratings, a Veteran’s lay report may constitute competent evidence of worsening, at least with respect to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that “as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability”). Here, the Veteran is competent to report how she feels and the symptoms she experiences. However, the February 2011 and May 2017 VA examiners took into consideration the Veteran’s reports of her symptoms during the examinations and determined that her depressive disorder is mild or, at most, moderate. As such, the Board finds the Veteran’s statements are of limited probative value in the context of her increased rating claim. See Caluza v. Brown, 7 Vet. App. 498 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence.). Based on the evidence above, the Board finds that the severity of the overall disability approximates the 30-percent rating for the Veteran’s depressive disorder. As shown by the evidence, the Veteran exhibits symptoms of depressed mood, crying, irritability, agitation, anxiety, difficulty concentrating, social isolation, diminished energy level, feelings of inadequacy, weight fluctuation, and difficulty falling/ remaining asleep. The Board also finds that her symptoms were fairly consistent during the appellate period; therefore, the 30-percent rating is granted for the entire appellate period. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berry, Counsel