Citation Nr: 20007591 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-16 701 DATE: January 30, 2020 ORDER The claim of entitlement to an initial rating of 70 percent for major depressive disorder with panic disorder is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s major depressive disorder with panic disorder manifested with symptoms most closely analogous to occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but did not rise to the level of a total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial evaluation of 70 percent, but no higher, for major depressive disorder with panic disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9434 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had honorable active duty service with the United States Marine Corps from May 1978 to May 1981 and with the United States Army from September 1981 to September 1995. The instant matter is on appeal from a May 2017 rating decision. 1. The claim of entitlement to an initial rating in excess of 50 percent for major depressive disorder with panic disorder Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran’s claim is to be considered. In initial rating cases, 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 (1999); 38 C.F.R. § 4.2. VA’s determination of the “present level” of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s major depressive disorder with panic disorder is rated under Diagnostic Code 9434, 38 C.F.R. § 4.130. Mental disorders are rated under the General Rating Formula for Mental Disorders pursuant to 38 C.F.R. § 4.130. A 50 percent rating is warranted 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 (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. 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. A 100 percent rating is assigned for 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. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran contends that he is entitled to an initial rating in excess of 50 percent for his major depressive disorder. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 70 percent rating, but no higher, for this disability. The Veteran’s VA treatment records, including both individual and group therapy, reflect serious symptoms associated with his major depressive disorder. By way of example, in February 2017, the Veteran reportedly thought of “wanting God to take [him] away” on a monthly basis. He endorsed isolative behaviors that were worsening over time. The Veteran reported nightmares, daily intrusive thoughts, avoidance behaviors, anxiety, hypervigilance, and social withdrawal. He also described feelings of guilt and shame associated with a medical diagnosis. He cried or became tearful at least once per week. The Veteran’s depressive symptoms occurred almost daily with a few major depressive episodes per year, which were characterized by mood worsening, low energy, significant guilt, profound isolation, diminished appetite, and worsened sleep. During treatment, he was calm, pleasant, and well-groomed. He was cooperative with his clinician. In April 2017, the Veteran underwent a VA examination to assess the severity of his major depressive disorder. The examiner noted the two diagnoses of major depressive disorder and panic disorder. His major depressive disorder caused headaches, depression, social isolation, fatigue, lack of motivation, anhedonia, irritability, decreased appetited, mild memory loss, indecisiveness, and feelings of disappointment. The panic disorder caused nightmares and fears that he could die any day. The Veteran endorsed significant anxiety. He also reported suicidal ideation without intent or plan. He denied homicidal ideation. The Veteran arrived at the appointment well-dressed, and he was pleasant and forthcoming with the examiner. His speech and motor abilities were appropriate, and no disorientation in any sphere was noted. VA treatment records from May 2017 reflect similar, ongoing symptomatology associated with his major depressive disorder. The Veteran reported to treatment appropriately dressed and neatly groomed. His attention and concentration were sufficient in the session, and he was oriented in all spheres. Speech was clear and coherent with appropriate affect. Thought processes and content were relevant, and his judgment was within normal limits. In August 2017, VA treatment records report several unhealthy thought patterns that were addressed in-session. An addendum to the April 2017 VA examination was obtained in October 2017 to address any functional impairment caused by his major depressive disorder. The examiner concluded that his symptoms were likely to impact his ability to manage his emotions, cause negative customer service interactions, as well as difficulties leading a team. Additionally, he was likely to have challenges with concentration, focus, attention to detail, and following through with tasks without mental distractions. In November 2017, VA treatment records report ongoing, persistent depressive symptoms, including sleep difficulty, isolation, apathy, and depressed mood. He was dressed appropriately for the treatment, and he was fully oriented. The clinician noted middle onset insomnia with subsequent reduced energy. He denied suicidal or homicidal ideation. In April 2019, the Veteran underwent another VA examination to assess his major depressive disorder. Overall, the examiner reported an improvement in his symptoms. The examiner noted a good relationship with his family and regular counseling at VA. The Veteran endorsed a pattern of becoming more socially withdrawn. The examiner reported ongoing symptoms of depressed mood and anxiety. The Veteran appeared for the examination appropriately attired and groomed. The examiner concluded that his depressive symptoms were likely controlled by medication. VA treatment records, however, reflect some inconsistencies in his overall improvement. In October 2019, the Veteran reported ruminations around death. He remained appropriately dressed and groomed for treatment, and he was alert and oriented in all spheres. In November 2019, VA treatment records reflect that, within the previous month, the Veteran felt depressed less than half of the days of the week. He had a good appetite, but low energy more than half of the days of the week. There were no suicidal ideations. Anxiety had not increased, and there were no reported symptoms of mania or psychosis. Overall time spent in his isolation room continued to decrease, and he, instead, tried to listen to the news. He enjoyed attending church twice per week, praying, singing, time with his family and his cat, going to the library, walking, gardening, and being in the church community. After a thorough review of the medical and lay evidence of record, the Board finds that the Veteran is entitled to a 70 percent evaluation for his major depressive disorder throughout the period on appeal. The Board recognizes that the Veteran suffers from deficiencies attributable or exacerbated by his major depressive disorder. The Board’s determination of the appropriate degree of disability is a finding of fact. In applying the rating schedule, the Board considers the severity, frequency, and duration of psychiatric symptoms to determine the appropriate disability evaluation. See, e.g., Brewer v. Snyder, No. 15-2800, 2017 U.S. App. Vet. Claims LEXIS 90, at 13 (Vet. App. Jan. 31, 2017); citing Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). While symptoms are listed under each category for evaluation, the particular symptoms are to be demonstrative of that overall level of severity, frequency and duration. Mauerhan v. Principi, 16 Vet. App. 436, 442 (U.S. 2002). As such, the Board has considered the symptoms specific to the Veteran throughout the period on appeal and determined the analogous evaluation pursuant to the ratings schedule in 38 C.F.R. § 4.130. When considering the severity, frequency and duration of the impairments as delineated in the 70 percent evaluation, the Board notes that the symptoms listed present a significant impediment to daily life. Symptoms such as obsessional rituals which interfere with routine activities, near-continuous panic or depression, and the inability to establish and maintain effective relationships, present obstacles to routine functioning on a daily basis. Personal hygiene and grooming are not limited to one particular sphere, but affect work, school, and family relations. Spatial disorientation and intermittently illogical speech are markedly severe symptoms associated with basic cognitive function and the ability to interact with the world. Suicidal ideation, in of itself, represents the impulse or desire to remove oneself from the world entirely. As exemplified by the symptoms listed in this category, the 70 percent evaluation is appropriate for deficiencies that harm most areas of life. Either symptoms are continuous, or near-continuous, or represent such a severity that routine daily functions are chronically impeded. In contrast, the evaluation for a 100 percent impairment includes symptomatology that presents a total impairment to social life and occupation. Not only are the representative symptoms of the most severe possible from a psychiatric disorder under the rating code, but they interfere with the ability to independently engage in activities of daily life. Persistent delusions or hallucinations, disorientation to time or place, and significant memory loss all prevent the person from routine engagement with the world. The ability to even maintain the most basic hygiene standards has been harmed by the severity or frequency of the associated symptomatology. When symptoms of a psychiatric disorder are so severe as to present a total impairment to occupational and social activity, then a 100 percent evaluation should be afforded. Throughout the period on appeal, the Veteran regularly endorsed symptoms of anxiety, depressed mood, sleep impairment, and fluctuating isolation. Earlier in the period, the Veteran reported increasing social withdrawal, including closing himself in a room with the shades drawn. He experienced depressive symptoms routinely with some major depressive episodes per year. The Veteran reported nightmares, hypervigilance, mild memory issues, and decreased appetite. He endorsed symptoms related to panic attacks, including racing thoughts and pulse, dizziness and heat sensations. A VA examiner concluded that he experienced significant difficulty with his ability to manage emotions, interact with others, follow instructions, or complete tasks in a timely manner. The Veteran also endorsed passive suicidal ideation and ruminations about death. While certainly severe, the manifestations of the Veteran’s service-connected major depressive disorder in this timeframe do not rise to the level of a total occupational and social impairment for the purposes of 38 C.F.R. § 4.130. His impairments, while touching on many areas of his life, are not of such severity to interfere with routine functions necessary for daily life. The Veteran was consistently alert and oriented in all spheres and maintained his grooming and hygiene. The Veteran’s mental faculties remained intact throughout this period. He exhibited increasing interest in previous hobbies such as singing, reading, and interacting with his church community. The Veteran also maintained consistently strong relationships with his wife, children, and grandchildren throughout this period. In sum, the Veteran’s symptoms do not mirror the severity, frequency and duration of ones such as persistent delusions or hallucinations, or inability to attend to basic hygiene. He continues to perform the activities of daily living, including maintaining his hygiene and grooming. While the Veteran certainly continues to cope with serious manifestations of his major depressive disorder with panic disorder, they do not rise to the level of a total occupational and social impairment as contemplated by the rating schedule. Resolving reasonable doubt in favor of the Veteran, he is entitled to an initial 70 percent rating for his major depressive disorder with panic disorder throughout the period on appeal, but no higher. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Fisher, 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.