Citation Nr: 20021747 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 19-04 596 DATE: March 26, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for major depressive disorder prior to May 9, 2013 is denied. Entitlement to an effective date prior to June 5, 2008 for major depressive disorder is denied. REMANDED Entitlement to a rating in excess of 50 percent for major depressive disorder, beginning May 9, 2013 and thereafter is remanded. FINDINGS OF FACT 1. Prior to May 9, 2013, the Veteran’s major depressive disorder was manifested by no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. A claim of service connection for depression was denied in an unappealed March 2005 rating decision. Following that deicison, the Veteran re-filed a claim of service connection for major depressive disorder on June 5, 2008. CONCLUSIONS OF LAW 1. Prior to May 9, 2013, the criteria for entitlement to a rating in excess of 30 percent for major depressive disorder have not been met. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to an effective date prior to June 5, 2008 for major depressive disorder have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1973 to June 1975. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In his timely filed February 2019 form 9, the Veteran declined an optional Board hearing. No subsequent hearing requests have been received. Increased Rating General Rating Principles 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 degree of disabilities 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 to the disability picture that 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. When evaluating the level of disability from a mental disorder, the rating agency shall consider the extent of social impairment but shall not assign an evaluation based solely on the basis of social impairment. The focus of the rating process is on industrial impairment from the service-connected psychiatric disorder, and social impairment is significant only insofar as it affects earning capacity. 38 C.F.R. §§ 4.126, 4.130 The Board will consider not only the criteria of the currently assigned diagnostic code, but also the criteria of other potentially applicable diagnostic codes. Rating Principles: Major Depressive Disorder The Veteran is currently service connected for major depressive disorder with a rating of 30 percent beginning June 5, 2008 through May 9, 2013, and a rating of 50 percent thereafter. Major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, under the General Rating Formula for Mental Disorder. The criteria for a 30 percent rating are occupational and social impairment with occasional decrease in work efficiency and intermittent period 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), or chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). The criteria for a 50 percent rating are 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; and difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are 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 the inability to establish and maintain effective relationships. The criteria for a 100 percent rating are 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 Board notes that the Veteran need not exhibit “all, most, or even some” of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 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.” Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant’s social and work situation. Id. Analysis Entitlement to an initial rating in excess of 30 percent prior to May 9, 2013 is denied. By way of history, the Veteran’s claim of service connection for major depressive disorder was granted in a January 2018 Board decision. A February 2018 rating decision awarded a rating of 30 percent effective June 5, 2008, the date of the request to reopen the claim, and a rating of 50 percent beginning May 9, 2013. The Veteran filed a timely notice of disagreement and perfected his appeal with his February 2019 form 9. Thus, at issue is entitlement to a rating in excess of 30 percent for major depressive disorder prior to May 9, 2013, and entitlement to a rating in excess of 50 percent beginning May 9, 2013 and thereafter. The issue of entitlement to a rating in excess of 50 percent beginning May 9, 2013 and thereafter is addressed in the remand section of this decision. The evidence, as discussed below does not substantiate entitlement to a rating in excess of 30 percent prior to May 9, 2013. Shortly before the period at issue, the Veteran attended a VA mental health psychiatry consult in May 2008. During the examination, the Veteran reported that since his back continued to decline his depression was worsening. The examiner noted that the functional decline manifested with a negative attitude in general, lack of enjoyment of life, and anhedonia; the Veteran spending most of his time sleeping. He denied feelings of suicide or homicide. Notably, the Veteran offered to “make his symptoms worse” if the examiner needed them to be. See July 2008 Medical Treatment Record- Government Facility at 7. June 2008 VA treatment records note that the Veteran has a history of depression, with the Veteran’s chronic pain likely being a significant contributor to his depression. See July 2008 Medical Treatment Record-Government Facility at 5. During a December 2009 depression screening, the Veteran reported having little interest or pleasure in doing things and was feeling down, depressed or hopeless nearly every day. See March 2011 Medical Treatment Record-Government Facility at 7. The Veteran attended a mental health appointment in early March 2010. He reported serious depressed mood secondary to ongoing severe back pain and did not feel that his antidepressant medication was helpful. The Veteran also felt more irritable and difficult to live with; he characterized himself as loud and aggressive. A mental status examination noted the Veteran as appropriately groomed with normal activity; fluent but pressured speech; depressed, expansive mood; spontaneous, rapid, and tangential thought flow; no abnormal thought content; no suicidal ideation or homicidal ideation and fair judgment and insight. See March 2011 Medical Treatment Record- Government Facility at 110. During a subsequent March 2010 mental health appointment, the Veteran’s significant other reported that the Veteran experienced some extreme emotional lability with anger. She also reported that the Veteran had poor judgment about who he relates to. A mental status examination noted the Veteran was appropriately groomed, with normal activity, fluent but pressured speech, depressed mood, and a somewhat expansive affect. See March 2011 Medical Treatment Record- Government Facility at 98. The Veteran attended a VA mental health appointment in April 2010. A mental status examination noted the Veteran was appropriately groomed, with normal activity, cooperative attitude, fluent speech, expansive mood, labile affect, no perception abnormality, spontaneous and tangential thought flow, no abnormal thought content and fair judgment and insight. The Veteran denied suicidal ideation but endorsed homicidal ideation without plan or intent. See Medical Treatment Record- Government Facility at 36. The Veteran attended a follow up appointment in July 2010. He reported feeling somewhat more level on Depakote. A mental status examination noted the Veteran as appropriately groomed with restless activity, playful and evasive attitude, fluent speech, expansive mood, spontaneous thought flow, no abnormal thought content, no suicidal or homicidal ideation, fair insight and fair judgment. See April 2011 Medical Treatment Record- Government Facility at 41. During a November 2012 VA appointment, the Veteran underwent a depression screening. He denied feeling hopeless about the present or future and denied any suicidal thoughts or attempts. The Veteran was noted to be on fluoxetine and valproic acid for his depression. See June 2013 CAPRI at 181, 186. The record contains no subsequent evidence with respect to the Veteran’s major depressive disorder for the period prior to May 9, 2013. Ultimately, the evidence of record does not establish that the severity, persistence and duration of the Veteran’s symptoms more near approximate a rating in excess of 30 percent during the period in question. To warrant a rating in excess of 30 percent, there must at minimum be evidence of occupational and social impairment with reduced reliability and productivity, for a rating of 50 percent. Here, while the Veteran has reported some symptoms of anger and irritability and believed he was difficult to live with, mental status examinations note the Veteran as being appropriately groomed, with good perception, normal thought content and with no suicidal or homicidal ideations. Further, there is no evidence of difficulty understanding commands, no evidence of impaired memory and no evidence of panic attacks. There was no evidence of violence and, without more specific details, the irritability and anger toward his wife is deemed contemplated by the 30 percent evaluation. Moreover, some remarks made by the Veteran, as detailed above, suggest a possibility for symptom exaggeration and his providers have suggested that his reports may be motivated by secondary gain. The treatment providers are medical professionals and the Board defers to their judgment with respect to such observations. With this in mind, the Board declines to find equipoise as to the question of entitlement to a higher evaluation. Similarly, the Veteran’s symptoms do not more nearly approximate entitlement to a rating of 70 percent as the Veteran’s normal thought content, generally fair insight and judgment and no evidence of panic attacks do not establish occupational and social impairment with deficiencies in most areas. This evidence also does not establish total occupational and social impairment to warrant a rating of 100 percent. Overall, the Veteran’s symptoms do not establish more than occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. For the foregoing reasons, entitlement to a rating in execs of 30 percent prior to May 9, 2013 is denied. Effective Date The effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application thereof. 38 U.S.C. § 5110(a). The Board notes that on March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). The amendments, however, are only effective for claims and appeals filed on or after March 24, 2015. Here, the Veteran’s claim was filed prior to March 24, 2015, and therefore was not required to be filed on a standard form. Analysis Entitlement to an effective date prior to June 5, 2008 for major depressive disorder is denied. By way of history, the Veteran’s claim of service connection for a depressive disorder was denied in a March 2005 rating decision. He did not appeal that determination and no new and material evidence was received within a year of its issuance. Accordingly, the March 2005 rating decision is final and any effective date must be subsequent to that decision. Following the last final denial in March 2005, the record shows that the Veteran filed his initial informal claim for major depression in June 2008. See June 2008 Statement in Support of claim. The record contains no evidence of a claim for major depression filed prior to June 2008 (but after March 2005), or a notice of intent to file submitted or received prior to June 2008. As such, entitlement to an earlier effective date is not established. Entitlement to an effective date prior to June 5, 2008 for major depressive disorder is denied. REASONS FOR REMAND Entitlement to a rating in excess of 50 percent beginning May 9, 2013 and thereafter for major depressive disorder is remanded. A remand is warranted to assess the current severity of the Veteran’s mental health symptoms. Evidence shows that the Veteran last attended therapy in or about September 2019 at which time, he was noted to have fair insight and judgment, some impaired recent and remote memory, intact attention and concentration, limited fund of knowledge and dysphoric affect. See December 2019 CAPRI at 40. However, treatment records as recent as March 2020, suggest a worsening in the Veteran’s mental health disabilities. Specifically, a March 2020 treatment record notes that while the Veteran’s significant other requested that the Veteran have a new mental health provider, the Veteran’s cognition is impaired enough that therapy will not be helpful. See March 2020 CAPRI at 2. March 2020 treatment records also note a continued to decline in the Veteran’s mental status. See March 2020 CAPRI at 4. The record does not contain evidence which establishes the current severity of the Veteran’s cognitive impairments or how these impairments manifest as it relates to the Veteran’s major depressive disorder. As this evidence suggests a worsening in the Veteran’s symptoms, a new VA examination is warranted. This matter must be remanded. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected major depressive disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to the Veteran’s major depressive disorder alone. ERIC S. LEBOFF Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Wimbish 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.