Citation Nr: 20008091 Decision Date: 01/30/20 Archive Date: 01/30/20 DOCKET NO. 10-33 579 DATE: January 30, 2020 ORDER Entitlement to a disability rating in excess of 70 percent for major depressive disorder (MDD), from September 12, 2008 to March 13, 2018 is denied. FINDING OF FACT For the period on appeal, September 12, 2008 to March 13, 2018, the Veteran's MDD has not approximated a level of total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for MDD from September 12, 2008 to March 13, 2018 are not met. 38 U.S.C. § 1155, 5107; 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 May 1984 to February 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. In the August 2009 rating decision, the RO granted service connection for MDD and assigned a 30 percent rating, effective September 12, 2008. In an August 2010 rating decision, the RO increased the rating to 50 percent for MDD, effective January 29, 2010. In a December 2014 rating decision, the RO increased the rating to 70 percent for MDD, effective September 12, 2008. The Veteran has appealed this rating in his substantive appeal. The May 2018 Board decision remanded the increased rating claim for MDD for further development. In a November 2019 rating decision, the RO increased the rating to 100 percent for MDD effective March 13, 2018. In its November 2019 SSOC, the RO continued the 70 percent rating for MDD for the period of September 12, 2008 to March 13, 2018. As this does not constitute a full grant of benefits, the claim is still on appeal before the Board. AB v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a disability rating in excess of 70 percent for major depressive disorder (MDD), from September 12, 2008 to March 13, 2018 Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of the two ratings shall be applied, the higher rating 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Veteran's MDD has been rated as 70 percent disabling, from September 12, 2008 to March 13, 2018. The Veteran contends that a higher rating greater than 70 percent is warranted for this appeal period. The Veteran's MDD is rated under the criteria of Diagnostic Code 9434, which provides ratings under the General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130. Under Diagnostic Code 9434, 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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 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; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas - i.e., the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas. See Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9400. Furthermore, when evaluating a mental disorder, the Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission, and must also assign an evaluation based on all the 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. 38 C.F.R. § 4.126 (a). In this current matter, the Board finds that the Veteran's symptoms do not more nearly approximate a rating of 100 percent prior to March 13, 2018 as they are not of such severity, frequency or duration to result in total occupational and social impairment. In a November 2004 private Psychiatric Examination, the Veteran was diagnosed with bipolar disorder and alcohol dependency. During examination, the examiner noted that he maintained eye contact. His speech was soft and logical, and he was oriented to person, place and time. His judgement and insight were adequate. His GAF score was 71. See December 2004 Medical Treatment Record-Non-Government Facility. In an October 2008 private examination, the Veteran was diagnosed with organic mood disorder and bipolar disorder. that the Veteran could lose his patience easily. He complained of depression, irritability and poor tolerance. He needed medication to sleep daily. The Veteran’s GAF score was 61. The Physician noted that the Veteran currently denies any suicidal or homicidal ideation. See October 2008 Medical Treatment Record-Non-Government Facility. The Veteran was afforded a VA Examination in May 2009 and was diagnosed with MDD. The Veteran’s GAF score was 65. The Veteran complained of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective work and social relationships, difficulty in adapting to stressful circumstances and impaired impulse control. He reported no suicide ideation or problems with activities of daily living. The examiner noted that the Veteran’s psychological symptoms are manifested by occupational and social impairment with reduced reliability and productivity in areas such as work and mood but not in judgement and thinking. The VA examiner did not find that the Veteran was totally occupationally and socially impaired. See May 2009 VA Examination. An additional private psychiatric report dated January 24, 2010 indicated that the Veteran reported he had a fist fight with his co-worker and that his relationship with peers at work is poor. The Veteran also reported that he continues to be withdrawn, locks himself in his room for days and does not like to interact with his mother, father, or brothers. The physician noted that the Veteran denies any suicidal or homicidal ideation. The Physician concluded that in his medical opinion, “the Veteran need to be totally disabled” and that the reason why he continues working is because he needs to sustain himself and his family. See January 2010 Medical Treatment Record-Non-Governmental Facility. The Veteran has reported feelings of social detachment, estrangement, and diminished social interest. A review of the record however, shows that the Veteran is still married to and lives with his second wife. He remains in contact with his children and still cares for his ailing mother. See CAPRI. Overall, the Veteran has described his family relations as regular. Again, this is not to say that his social functioning is ideal, but the 70 percent rating that is assigned contemplates an inability to establish and maintain effective relationships. As such, the Board finds that the Veteran has demonstrated an ability to maintain social relationships, despite some social impairments. Thus, the Veteran does not suffer from a total social impairment. As to occupational impairment, the Veteran often talked about how his work was stressful and that he did not get along with his co-workers. In a March 2010 Psychiatric Progress note, the Veteran complained of feeling anxious and that he does not like his work. He denied sadness, any manifestations of euphoria and irritability for most part of the day (for several consecutive days). He also denied hallucinations, suicidal and homicidal thoughts, panic attacks episodes, obsessive senseless thoughts and /or compulsive behavior to neutralize thoughts. See CAPRI. Also, on March 27, 2012, the Veteran walked into a VA clinic after an incident at work. The Veteran reported that he feared losing control of his behavior but denies any ideas of wanting to hurt himself or others. See CAPRI. Furthermore, in an August 2017 Psychiatric Progress Note, the Veteran talked about how his current pain level and mobility issues have made it extremely difficult to perform in his job. This in turn he said, increases his irritability. In spite of his irritability, the Veteran denied any recent aggressive outbursts at home or work, denied any racing thoughts, grandiosity, experiencing perceptual disturbances and delusional thoughts. See CAPRI. The Board notes that the Veteran began working for the United States Postal Service in 1993 and retired in January of 2018 (never changing jobs within this period), suggesting that he does not have total occupational impairment. This is not to say that his work is not stressful, but rather that the 70 percent rating that is assigned contemplates deficiencies in work, due to his MDD symptoms, that interfere with routine activities and difficulty adapting to stressful situations in a work setting. As to impaired impulse control, the Veteran has consistently reported irritability. The Board notes however that throughout the VA and private treatment records, the Veteran is noted as exhibiting good judgment, and insight. Thus, while the Veteran struggles with irritability, the Board finds his symptoms do no correlate with a severe impaired impulse control, sufficient to warrant a higher evaluation. The Board does not doubt the Veteran’s competent and credible report that his life was stressful within this appeal period. However, the evidence of record does not reflect that the Veteran has manifested gross impairment in thought processes or communication; persistent hallucinations or delusions; grossly inappropriate behavior; disorientation to time or place; memory loss for own occupation, or own name, persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or other symptoms. In other words, the Veteran’s symptoms have not risen to the level of, frequency and severity and duration indicative of a total occupational and social impairment due to his service-connected MDD. The Board notes that the January 2010 private examiner found the Veteran to be permanently and totally disabled. However, based on the above cited evidence, the Board finds that the Veteran has not exhibited the level of cognitive, occupational and social impairment that would render him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. As such, the preponderance of the evidence shows that the Veteran's MDD symptomatology does not more closely approximate the criteria for a 100 percent disability rating under 38 C.F.R. § 4.130. Thus, a rating in excess of 70 percent for MDD between September 12, 2008 and March 13, 2018 is not warranted. The Board has also considered whether entitlement to a temporary total rating under 38 C.F.R. § 4.29, is warranted, based on the Veteran’s admission into a day hospital program from February 27, 2017 to March 20, 2017. Under 38 C.F.R. § 4.29, a temporary total disability rating will be assigned when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period exceeding 21 days or has required hospital observation at VA expense for a service-connected disability for a period exceeding 21 days. 38 C.F.R. § 4.29. Domiciliary care is defined as either a temporary home to a veteran, embracing the furnishing of shelter, food, clothing, and other comforts of home, including necessary medical services; or, a day hospital program consisting of intensive supervised rehabilitation and treatment provided in a therapeutic residential setting for residents with mental health or substance abuse disorders, and co-occurring medical or psychosocial needs such as homelessness and unemployment. 38 C.F.R. § 17.30 (b)(1). In this case, a February 2017 VA treatment record reflects that the Veteran was admitted into a day hospital program for his MDD from February 27, 2017 to March 20, 2017 (which is more than 21 days). However, the records stated that the day hospital was an ambulatory mental health care program and that the Veteran was oriented to return daily between the hours of 7:30 am to 2:00 pm or visit a psychiatric intensive care if at any time he felt anxious, irritable, or had thoughts of harming himself or others. See CAPRI. Thus, given the above definition of domiciliary care, the Board finds that entitlement to a temporary total disability rating for the period of time the Veteran was admitted into the day hospital program, is not warranted under 38 C.F.R. § 4.29. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.