Citation Nr: 20008032 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 19-26 081A DATE: January 30, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for major depressive disorder (MDD) is denied. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected MDD has resulted in no more than 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). CONCLUSION OF LAW The criteria for a rating in excess of 30 percent for MDD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1952 to March 1954. 1. Entitlement to an initial rating in excess of 30 percent for MDD The Veteran’s service-connected MDD has been initially evaluated as 30 percent disabling under Diagnostic Code 9434. Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Diagnostic Code 9434 (MDD) is rated under the General Rating Formula for Mental Disorders. The General Rating Formula provides that a 30 percent rating is assigned for 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). 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of mood and motivation; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. The use of the term “such as” in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that “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.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” The Veteran was examined for his psychiatric disorder in June 2018. VA-QTC Mental Disorders examination, June 2018. At that time, he complained of depressed mood, anxiety, and chronic sleep impairment. He reported being married and living with his wife and one great-grandchild. He maintained contact with his siblings, children, grandchildren, and great grandchildren and attended church regularly. The examiner found that he was oriented and interactive with no suicidal or homicidal ideation, memory problems, thought disorders, or speech problems. She diagnosed him with MDD, mild, recurrent, and found that it resulted in 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 addition to the June 2018 VA-QTC examination, the medical evidence includes May and June 2018 letters from the Veteran’s private psychologist, Dr. K.L.U. Dr. K.L.U. letters, May 2018, June 2018. These letters indicate that the Veteran experiences symptoms of depression, loneliness, and frustration. Dr. K.L.U. also explains that he self-isolates and feels sad about missing conversations and activities with family and friends because of his audiological disabilities. She further noted that he had little interest in going anywhere or doing anything and that this has caused his quality of life to greatly suffer. In addition to the medical evidence, the Veteran submitted personal statements attesting to his symptoms. These statements were consistent with the medical evidence discussed above. Upon review of the evidence of record, discussed above, there is no basis for an initial rating in excess of 30 percent for the Veteran’s MDD. There is no evidence of occupational and social impairment with reduced reliability and productivity. Although the Veteran experiences difficulty communicating and resulting isolation due to his separately service-connected audiological disabilities, there is no indication that it causes such social and occupational impairment to warrant a higher rating. Despite these difficulties, he maintained relationships with many family members and attended church regularly. There is no indication that his MDD symptoms result in reduced reliability and productivity. Without evidence of more severe social and occupation impairment, a higher rating cannot be assigned under the General Rating Formula, as to the 50, 70, or the 100 percent rating. (Continued on the next page)   Additionally, the Board notes that there is no indication in the medical evidence of record that the Veteran’s symptomatology warranted other than the currently assigned 30 percent rating. The assignment of staged ratings is not warranted. See Fenderson, supra. The Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim of entitlement to an initial rating in excess of 30 percent for MDD, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moore, 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.