Citation Nr: A20017100 Decision Date: 11/18/20 Archive Date: 11/18/20 DOCKET NO. 191210-51299 DATE: November 18, 2020 ORDER An initial disability rating in excess of 30 percent prior to June 13, 2019 for service-connected depression and anxiety associated with multiple sclerosis with bowel impairment, voiding dysfunction, with urine leakage, erectile dysfunction, and muscle weakness of the lower extremity is denied. FINDING OF FACT Prior to June 13, 2019, the Veteran’s depression and anxiety manifested 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 routine behavior, self-care, and conversation normal); it was not shown to cause occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 30 percent prior to June 13, 2019 for service-connected depression and anxiety associated with multiple sclerosis with bowel impairment, voiding dysfunction, with urine leakage, erectile dysfunction, and muscle weakness of the lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.126, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from April 1992 to April 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2019 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to “an earlier effective date for the evaluation of depression and anxiety associated with multiple sclerosis with bowel impairment, voiding dysfunction, with urine leakage, erectile dysfunction, and muscle weakness of the lower extremity.” The Veteran disagreed with that decision by filing a timely Decision Review Request: Board Appeal (Notice of Disagreement) and requested Direct Review by a Veterans Law Judge (VLJ). See December 2019 VA Form 10182. Due to his selection of the Direct Review “lane” under the Appeals Modernization Act (AMA), the Board will review the same evidence of record at the time of that rating decision. Although the issue in the December 2019 rating decision was phrased as an “earlier effective date” claim, the Board notes that the issue on appeal originates from an August 2019 rating decision that granted service connection for depression and anxiety associated with multiple sclerosis, rated 30 percent disabling from May 21, 2014 to June 13, 2019, and 100 percent from June 13, 2019. That same month, the Veteran filed a Decision Review Request: Higher-Level Review arguing for an earlier effective date for the 100 percent rating assigned for his depression and anxiety, but also requested consideration for higher ratings generally from the date of his award of service connection on May 21, 2014, to the effective date of his total disability rating on June 13, 2019. See August 2019 Higher-Level Review Claim. This resulted in the December 2019 rating decision now on appeal to the Board. The Veteran continues to seek the maximum schedular rating for his depression and anxiety prior to June 13, 2019, and, if not, a higher rating generally. See December 2019 VA Form 10182. Given the Veteran’s disagreement with the disability rating assigned prior to June 13, 2019, the Board has recharacterized the issue on appeal from an earlier effective date claim to an increased rating claim, which is a more accurate and favorable representation of his claim. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). Entitlement to an initial disability rating in excess of 30 percent prior to June 13, 2019 for service-connected depression and anxiety associated with multiple sclerosis with bowel impairment, voiding dysfunction, with urine leakage, erectile dysfunction, and muscle weakness of the lower extremity. The Veteran’s service-connected depression and anxiety associated with multiple sclerosis with bowel impairment, voiding dysfunction, with urine leakage, erectile dysfunction, and muscle weakness of the lower extremity is assigned a 30 percent disability rating under 38 C.F.R. § 4.130, Diagnostic Code 9434 for the period from May 21, 2014 to June 13, 2019 (and 100 percent from that date). He seeks a higher initial disability rating prior to June 13, 2019. Under the General Rating Formula for Mental Disorders, to include depression and anxiety, 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, Diagnostic Code 9434. A 50 percent rating is warranted when 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 (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. Id. A 70 percent evaluation 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 evaluation 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 symptoms listed in the rating formula are examples, not an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding that “any suggestion that the Board was required... to find the presence of all, most, or even some of the enumerated symptoms is unsupported by a reading of the plain language of the regulation”). 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.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). “The regulation’s plain language highlights its symptom-driven nature” and “symptomatology should be... the primary focus when deciding entitlement to a given disability rating.” Id. As such, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment to the extent specified in the rating criteria, rather than solely on the examiner’s assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126(a). A review of the claims file shows that, in support of his claim for service connection, the Veteran submitted statements from various family members to describe the changes in his personality and mental behaviors both during and following his military service. In general, they noted that compared to how he had been prior to service, the Veteran now presented as moody, withdrawn, reclusive, depressive, and with mood swings. He also no longer liked to be involved in group activities and preferred to be at home or at a maximum with a few friends for gatherings. See, e.g., Statements received in January 2016 from S.L., W.T.L., P.A.L., and H.L. Private treatment records from U.N.I. Urgent Care Center show that in October 2014, the Veteran was seen for complaints of constant fatigue since May 2014. On review of his systems, the Veteran denied anxiety/nerves and depression. During the examination, he was noted to be alert and oriented to person, place and time, with normal mood, affect, judgment, and insight. His recent and remote memory were also noted to be intact. In January 2015, the Veteran was seen for follow-up. He reported that he did not feel depressed and had not had thoughts about hurting himself, but that his mood was down at times. In April 2015, the Veteran was seen again for follow-up; he denied any current anxiety or depression issues. Private treatment records from Dr. D.H. show that in November 2015, the Veteran was referred for evaluation for possible multiple sclerosis. During that examination, the Veteran reported fatigue, some issues with short term memory and attention, dysphoria, and irritability. He also had some issues with motivation and lack of pleasure, but denied any suicidal or homicidal ideation. During the mental status examination, the Veteran was noted to be alert, with normal attention, orientation, fund of knowledge, memory recall, and no language difficulties. The Veteran was assessed as having depression. In December 2015, the Veteran underwent a private medical examination by Dr. C.N.B., a neuro-radiologist, to address his multiple sclerosis and its relationship to his military service. As part of this examination, Dr. C.N.B. indicated the Veteran could not remember short term items well; had moderate impairment of memory, attention, concentration, or executive functions resulting in moderate functional impairment; and was moderately severely impaired in judgment because he did not understand the VA claim process and was unable to get or seek help in the processing of his claim and for even routine and familiar decisions, was occasionally unable to identify, understand, or weigh the alternatives, understand the consequences of choices, and make a reasonable decision. Dr. C.N.B. also noted that the Veteran did not go outside the home for any social activities and that his social interaction was inappropriate most of the time. He occasionally did not know what day it was or where he was and was occasionally disoriented to one of the four aspects of orientation (person, time, place, and situation). For visual spatial orientation, Dr. C.N.B. noted that the Veteran was moderately impaired because he usually got lost in unfamiliar surroundings, following directions, and judging distance. For neurobehavioral effects, Dr. C.N.B. noted that the Veteran argued with his spouse often and that he was aggressive and irritable; he had to go out and take walks and was noted to have punched holes in walls. Dr. C.N.B. indicated these neurobehavioral effects frequently interfered with the Veteran’s workplace and social interactions but did not preclude them. Dr. C.N.B. also noted that the Veteran was able to communicate his ideas most of the time and that his comprehension or expression of either spoken language or written language was only occasionally impaired, as he could communicate complex ideas. Based on the foregoing, Dr. C.N.B. summarized his findings as stating that the Veteran had a flat affect and was likely depressed. He also had anxiety as per his mental health examination. Dr. C.N.B.’s recommendation was that the Veteran be evaluated by psychiatry and given a mental diagnosis. In February 2016, the Veteran underwent a VA examination for his multiple sclerosis. The examiner noted the Veteran did not have any sleep disturbances attributable to multiple sclerosis and also indicated the Veteran did not have any signs or symptoms of depression, cognitive impairment, or dementia, or any other mental disorder attributable to multiple sclerosis and/or its treatment. In a May 2016 letter, Dr. D.H. stated that the Veteran’s depression and anxiety symptoms were made worse by his multiple sclerosis. On June 13, 2019, the Veteran underwent a VA psychiatric examination. The examiner diagnosed an unspecified anxiety disorder and recurrent, mild major depressive disorder, and opined that these mental disorders resulted in total occupational and social impairment. In reaching that conclusion, the examiner noted that the Veteran endorsed symptoms of depressed mood; anxiety; panic attacks more than once a week; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; flattened affect; gross impairment in thought processes and communication; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The examiner further noted that on the day of the examination, the Veteran presented on time and was casually dressed, maintaining good hygiene and nutrition. He was also alert and oriented to all four spheres. His mood, however, was depressed with congruent affect. He reported that his last fleeting thoughts of suicidal ideation had been in early 2019, but he denied intent, plan, or gesture. He also denied any current suicidal ideation and no delusions or hallucinations were reported or detected. As noted above, the Veteran is assigned a 100 percent disability rating for his depression and anxiety from June 13, 2019. This rating was assigned based on the findings from the VA examination conducted on that date. The Veteran’s representative contends that a higher rating prior to June 13, 2019, should be awarded for the Veteran’s depression and anxiety and argues specifically that had the Veteran been provided a VA psychiatric examination prior to June 13, 2019, this would have allowed for the assignment of the 100 percent disability rating from an earlier effective date. After reviewing the relevant evidence of record, the Board disagrees and finds that the Veteran is appropriately assigned a 30 percent disability rating prior to June 13, 2019, for his depression and anxiety. Although the Veteran’s family members submitted statements in January 2016, describing him as moody, withdrawn, reclusive, depressive, and with mood swings in the years following his military service, such statements do not indicate either the level of severity of those symptoms during the relevant period on appeal (i.e., from May 2014 to June 2019). Significantly, the Veteran’s treatment records show that in May 2014, January 2015, and April 2015, he denied any symptoms of anxiety/nerves and depression. His only complaint during that time was in January 2015, when he reported that that his mood was down at times, but he denied thoughts of hurting himself and on examination in May 2014, the Veteran was noted to be alert and oriented to person, place and time, with normal mood, affect, judgment, and insight. His recent and remote memory were also noted to be intact. Additionally, on February 2016 VA examination, it was reported that the Veteran did not have any signs or symptoms of depression, cognitive impairment, or dementia, or any other mental disorder attributable to multiple sclerosis and/or its treatment. This finding appears to have been based on the fact that no psychiatric symptoms were reported or discussed during this examination; instead, for medical history, the Veteran’s multiple sclerosis was described as consisting of a 23-year history of weakness in the left lower extremity, fatigue, imbalance, dizziness, headaches, an occasional bowel/bladder issues. In contrast, the Veteran also underwent a private medical examination by Dr. C.N.B. in December 2015. It was Dr. C.N.B.’s impression that the Veteran had depression and anxiety; however, Dr. C.N.B., who is a neuro-radiologist and not a mental health provider, also recommended that the Veteran be evaluated by psychiatry so that a formal mental diagnosis could be provided. Furthermore, although Dr. C.N.B. indicated that he conducted a mental health examination, it is unclear from his report what diagnostic tests were utilized given that he is not a mental health provider. For example, it is observed that Dr. C.N.B. reported the Veteran as having short term memory issues; impairment with memory, attention, concentration, and executive functions; impaired judgment; and occasional disorientation. However, such findings are not supported by the Veteran’s treatment records both prior to and following that private examination. As already discussed, in May 2014, the Veteran was found to be alert and oriented to person, place and time, with normal mood, affect, judgment, and insight. In November 2015, the Veteran reported to private physician that he felt he had some issues with short term memory and attention; however, on mental status examination, he was found to be alert, with normal attention, orientation, fund of knowledge, memory recall, and no language difficulties. Even during the June 2019 VA examination, where the Veteran was found to have total occupational and social impairment, he was not noted to have any issues with his memory, judgment, or orientation. Therefore, these findings by Dr. C.N.B. are inconsistent with the overall medical evidence of record. The record does show that prior to June 13, 2019, the Veteran reported experiencing symptoms of dysphoria, depression, irritability, and anxiety. See Private treatment records from Dr. D.H. He was also, according to his family members and Dr. C.N.B.’s private examination report, moody, withdrawn, had a flattened affect, and did not like to leave the house. However, it was also reported that he was able to socialize in small gatherings of friends and the other records in the claims file shows the Veteran remained married throughout. Therefore, it is not shown that his symptoms rose to the level of occupational and social impairment with reduced reliability and productivity (or higher). In particular, for the period prior to June 13, 2019, the record does not show that the Veteran exhibited symptoms of the type, extent, frequency, or severity indicative of those identified as warranting a 50 percent rating, such as 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; and difficulty in establishing and maintaining effective work and social relationships. Moreover, the evidence does not show that the Veteran demonstrated any unlisted symptoms of similar severity, frequency, and duration, that caused occupational or social impairment equivalent to a 50 percent disability rating. See Mauerhan, 16 Vet. App. at 443. Notably, even Dr. C.N.B. in his December 2015 private examination report found that the Veteran’s neurobehavioral effects would not preclude workplace and social interactions. It is further noted that prior to 2019, the Veteran consistently denied suicidal ideation or thoughts of self-harm. (Continued on the next page)   The Board acknowledges that there is a limited record between 2016 and 2019 in this case; however, the Veteran has not identified any additional sources of private or VA treatment for his depression and anxiety. The available and relevant records dated prior to June 13, 2019 have been thoroughly reviewed and discussed above, and they simply do not show the level of severity demonstrated during the VA examination conducted on that date. They also do not show the level of severity required for a disability rating higher than the one presently assigned. Accordingly, a disability rating in excess of 30 percent prior to June 13, 2019, for the Veteran’s service-connected depression and anxiety is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.