Citation Nr: 20004744 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 10-31 214 DATE: January 21, 2020 ORDER Entitlement to a disability rating in excess of 70 percent from August 22, 2014, for persistent depressive disorder is denied. FINDING OF FACT The Veteran’s persistent depressive disorder has been characterized by occupational and social impairment with deficiencies in most areas; however, total occupational and social impairment has not been shown. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 70 percent for persistent depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1970 to December 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal of a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in June 2016 when it was remanded to the Agency of Original Jurisdiction for further development and in January 2019 when it was adjudicated on the merits. The Board notes that the Veteran filed an application in March 2008 and listed depression. A September 2008 rating decision denied entitlement to service connection for posttraumatic stress disorder (PTSD), to which the Veteran filed a notice of disagreement and filed a VA Form 9 Substantive Appeal. The RO issued the December 2012 rating decision and granted service connection for major depressive disorder (claimed as PTSD) and assigned a 50 percent evaluation effective March 7, 2008. In an August 2015 rating decision, the RO increased the rating for persistent depressive disorder to 70 percent, effective August 22, 2014. The January 2019 Board decision granted entitlement to an initial disability rating of 70 percent and denied entitlement to a disability rating in excess of 70 percent from August 22, 2014. In August 2019, the United States Court of Appeals for Veterans Claims (Court) granted a Joint Motion for Partial Remand (Joint Motion) and vacated the January 2019 decision. The Joint Motion parties agreed that the Board erred when it provided inadequate reasons and bases for the denial of a disability rating in excess of 70 percent from August 22, 2014 for a depressive disorder. Specifically, the Board decision contained discussion of Global Assessment of Functioning scores which was inappropriate. Thus, the case was returned to the Board, and the matter is presently before the Board for further appellate review. Disability ratings are determined by applying the criteria set forth in the VA 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; 38 C.F.R. § 4.1. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the veteran’s medical history. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where the Veteran has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. VA shall consider all information and lay and medical evidence of record in a case, and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). When determining the appropriate disability rating 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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because 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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). A veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. 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); and an inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. The maximum schedular rating of 100 percent 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; and memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the lengths of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign a rating based on all 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign a rating on the basis of social impairment. 38 C.F.R. § 4.126(b). At an August 2015 VA psychological consultation, the Veteran explained that he has close contact with his siblings and had moved so that he could be closer to them. He reported that he had already established several relationships with friends in his new home, plays golf, likes to walk, and goes to beaches, bars, and dinners. He stated that most of the time he feels happy, and he feels depressed when he is stressed. The Veteran reported a suicide attempt in 2014 after he broke up with his longtime girlfriend. The psychiatrist noted the Veteran to be oriented to time, place and person and to have intact recent and remote memory; attention and concentration were mild with marked executive function deficit, and his speech was fluent and clear. The psychiatrist further noted the Veteran’s thought process to be linear, logical, and reality-based, and he had no delusions. At the visit, the Veteran denied suicidal or homicidal ideation or plan. The physician noted the Veteran had limited judgment, impulse control, and insight for his substance abuse problems. In a November 2015 VA psychiatry outpatient visit note, the Veteran reported having many friends and getting together with his friends to drink. He had a good mood and denied being depressed or manic. Further, he had a good energy level and denied being suicidal. He reported that he enjoys his life and feels happy most of the time. The Veteran reported being angry and irritable if he does not take his medication, and the psychiatrist noted that the Veteran has poor judgment and focus, is highly impulsive, drinks heavily, smokes marijuana, makes careless mistakes, and has difficulty organizing and keeping focus without medication. The psychiatrist further noted the Veteran to be oriented to time, place, and person; had intact recent and remote memory; attention and concentration was mild with marked executive function deficit; and his speech was fluent and clear. The psychiatrist listed the Veteran’s thought process to be linear, logical, and reality-based, and he had no delusions. His mood was euthymic. At the visit, the Veteran denied suicidal or homicidal ideation or plan. The psychiatrist noted that the Veteran had limited judgment, impulse control, and insight for his substance abuse problems. The psychiatrist stated that the Veteran denied being hyperaroused and tolerates crowds well. Lastly, the psychiatrist noted that the Veteran thinks about Vietnam daily, but it no longer causes significant disturbance. In a March 2016 VA psychiatry outpatient note, the examiner noted that the Veteran adjusted well to his new home and has many friends. He reportedly drinks with friends, has a good energy level, denied being suicidal, and enjoys his life. The Veteran denied having clear depressive episodes and denied having clear manic episodes or psychosis. The psychiatrist noted the Veteran’s appearance to be appropriate, neat, and overweight and further noted the Veteran to be pleasant, cooperative, and a fair historian. In a September 2016 VA mental disorders examination, the Veteran reported that he struggles with low moods most days. He further reported daytime fatigue, lack of energy, having to push himself to do things, sleeping 12 to 14 hours per day, and awakening at night 12 times. He reported to be emotional about the end of his long-term relationship in 2014, has feelings of low self-worth, and despite attempts to be involved in activities he does not find much enjoyment in them. He reported that despite his medication, he never really feels euthymic. The Veteran reported close relationships with his siblings but also reported that he was still struggling to understand his breakup in 2014. He explained that he attempts to meet others locally and joined a bowling team. He stated that he finds them very subdued and unlike those he was accustomed to participating with in his prior state of residence. He also explained that he is the youngest person in his community. He volunteers at the Moose Lodge and makes an effort to be active playing golf. He also reported dating online and has gone on dates, though they did not go well. The examiner noted that the Veteran was adequately dressed and groomed, alert, and oriented, with an anxious affect initially and upset and tearful while talking about his previous longterm relationship. His mood was primarily dysphoric, with some intermittent episodes of anxiety. The Veteran’s thought processes were mildly circumstantial and returned repeatedly to the end of his relationship in 2014. He had no current homicidal or suicidal ideation or psychotic symptoms. The examiner opined that the Veteran had 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. In a September 2016 Statement in Support of Claim, the Veteran stated that he takes medication to stay normal and safe from being angry all the time. In a June 2017 VA psychiatry note, the Veteran reported that he was stable in therapy and with medications. He further reported stable mood, adequate sleep and appetite, and no maniac or psychotic symptoms. He denied having suicidal or homicidal ideation, intent, or plans. He reported going out with friends, bowling weekly, and volunteering at the Moose Lodge. The psychiatrist noted his affect to be euthymic with congruent mood and listed his thought processes as organized and goal-directed while being alert and attentive. In a September 2017 VA psychiatry outpatient note, the psychiatrist noted that the Veteran reported to be stable with therapy and his medications. The Veteran was alert, attentive, cooperative, polite, and spontaneous with stable mood, euthymic affect, and congruent mood. In a July 2019 VA mental health initial evaluation, the examiner noted that when the Veteran is off of his medications he becomes hostile and aggressive with unstable mood and poor sleep. In a July 2019 VA psychiatric evaluation note, the psychiatrist noted that the Veteran reported being aggressive, unpredictable, and irritable when he runs out of his medications. He further stated that he engages in potentially dangerous behaviors, such as reckless driving that led to totaling a car three years ago. The psychiatrist noted that the Veteran has poor judgment, poor focus, drinks heavily, smokes pot, makes careless mistakes, has difficulties organizing and keeping focus, and is highly impulsive. In an August 2019 VA primary care nursing note, the Veteran responded that over the past two weeks he was not at all bothered by thoughts that he would be better off dead or of hurting himself in some way. The Veteran is competent to report his current psychiatric symptoms, as these observations come to them through their senses. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also acknowledges the Veteran’s belief that his symptoms are of such severity as to warrant a higher rating. However, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical evidence of record, which included and considered lay statements of the Veteran, is the most probative evidence of record. Thus, at no point during the appeal period has the Veteran’s symptoms have more closely approximated total occupational and social impairment, nor has he warranted the maximum 100 percent rating on the basis of other listed symptoms. The Board finds that the Veteran has not exhibited total occupational and social impairment to warrant an increase from 70 percent to 100 percent. Accordingly, the Veteran’s claim for entitlement to a disability rating in excess of 70 percent from August 22, 2014 is denied. Neither the Veteran nor his representative have raised any other issues, nor has the record reasonably raised any other issues. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board notes that the issue of entitlement to a total disability rating based upon individual disability (TDIU) was remanded in the January 2019 Board decision, and development and readjudication of that claim is still pending. A decision on that claim at this time would therefore be premature. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexis B. Markeson, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.