Citation Nr: 20021944 Decision Date: 03/30/20 Archive Date: 03/30/20 DOCKET NO. 13-22 513 DATE: March 30, 2020 ORDER The claim of entitlement to an initial rating greater than 50 percent for depressive disorder is denied. FINDING OF FACT Since the October 25, 2010 effective date of the award of service connection, the Veteran’s psychiatric symptoms have included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances; collectively, these symptoms are of the type and extent, frequency or severity (as appropriate) to indicate no more than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a rating greater than 50 percent for depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.20, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434, General Rating Formula for Mental Disorders. REASONS AND BASES FOR FINDING AND CONCLUSION This appeal to the Board of Veterans’ Appeals (Board) arose from a March 2011 rating decision in which the Veterans Affairs (VA) Regional Office (RO) granted the Veteran’s claim for service connection for depressive disorder and assigned an initial rating of 10 percent, effective October 25, 2010 (the identified date of claim). In May 2011, the Veteran filed a notice of disagreement (NOD) with the initial rating assigned. In November 2012, the Veteran and his representative had an informal conference with a decision review officer (DRO) at the RO, the report of which has been associated with the claims file. During the pendency of the claim, in a June 2013 rating decision, the RO partially granted the Veteran’s claim for a higher initial rating for his depressive disorder, awarding a 50 percent rating from October 25, 2010—the effecrive. However, inasmuch as higher ratings for the Veteran’s depressive disorder are available, and a veteran is presumed to seek the maximum available benefit for a disability, the claim for a higher initial rating remains viable on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35, 38 (1993). Also, in June 2013, the RO issued a statement of the case (SOC) denying a higher initial rating for depressive disorder. In August 2013, the Veteran filed a substantive appeal (via a VA Form 9, Appeal to the Board of Veterans’ Appeals) as to the higher initial rating claim for depressive disorder. In July 2017, the Veteran testified during a Board videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In December 2017, the Board remanded the Veteran’s claim for additional development. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, where, as here, the question for consideration is entitlement to a higher initial rating assigned following the grant of service connection, evaluation of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of “staged rating” (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The rating for the Veteran’s depressive disorder has been assigned under Diagnostic Code 9434. However, psychiatric disabilities other than eating disorders are rated pursuant to the criteria of a General Rating Formula. See 38 C.F.R. § 4.130. Under the General Rating Formula, 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 per 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. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. A 100 percent rating is warranted 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. Id. As the United States Court of Appeals for the Federal Circuit has explained, 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (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.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9434. 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). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely the basis of social impairment. 38 C.F.R. § 4.126(b). Historically, psychiatric examinations frequently included assignment of a Global Assessment of Functioning (GAF) score. According to the Fourth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-IV), GAF is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health illness.” There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability. See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995). However, the GAF score assigned in a case, like an examiner’s assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran’s disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). [Parenthetically, the Board notes that the, revised DSM-5, which among other things, eliminates GAF scores, applies to cases certified to the Board after August 4, 2014. See 79 Fed. Reg. 45,093 (Aug. 4, 2014))]. Turning to the evidence of record, the Veteran was afforded a VA examination in January 2011, the Veteran reported that he had panic attacks twice a week. He endorsed symptoms of chest pain and shortness of breath, but the examiner indicated that his symptoms were mild and did not meet the full diagnostic criteria for panic attacks. He reported mild depression symptoms sporadically throughout the day. Mental status examination revealed that the Veteran was clean, neatly groomed and casually dressed. He had mild tremors. His speech was spontaneous, and his attitude was cooperative and friendly. His affect was normal, and his mood was neutral. He was oriented in three spheres. His thought process and thought content was unremarkable. His insight and judgement were intact. He reported difficulty sleeping and fatigue during the day. He denied hallucinations and obsessive/ritualistic behavior. The Veteran denied homicidal and suicidal thoughts and episodes of violence. His recent, remote, and immediate memory was intact. The Veteran was reported to be a part-time postal worker for more than twenty-years. He was assessed with depressive disorder and assigned a GAF score of 66. On VA examination in February 2013, the Veteran reported that he was married for eight years and had two adult daughters. He indicated that he had “an excellent relationship” with his wife and children. He stated that he did not have any close friends who he saw on a regular basis and he stayed home due to his physical disabilities. The Veteran reported he had little motivation to engage in social activities, play music, or leave his house. His depression symptoms were noted to have increased since his evaluation in 2011. He indicated that his depression did not prevent him from working for the postal service. The Veteran’s psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The examiner diagnosed depressive disorder and indicated that the level of occupational and social impairment from his mental disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning sastisfactorily, with normal routine behavior, self-care and conversation. The examiner assigned a GAF score of 60. During the July 2017 Board videoconference hearing, the Veteran testified that he was not taking any medication for his depressive disorder. He noted that he had been prescribed antidepressants eight years prior and did not like how they made him feel. He indicated that he was not interested in pursuing his hobbies anymore. He reported that he had “panic attack type problems” and chest pains. He testified that he retired as soon as he was eligible. The Veteran indicated that his depression had worsened in recent years. He noted that felt like he had no life and nothing “to step forward for.” He reported that he was seeking treatment at VA. On VA examination in July 2019, the Veteran reported that he had been married to his second spouse since 2003 and they had a healthy, stable relationship. He indicated that he has two daughters who lived out of state with whom he communicated either daily or every other day. The Veteran’s psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. Clinical evaluation revealed that the Veteran was alert and fully oriented. His grooming and hygiene were appropriate. He was cooperative and generally polite. His mood was dysphoric, and his affect was full and congruent. His speech was spontaneous, logical, and within normal limits. His thought processes were linear and goal-directed with normal associations. There were no signs or reported symptoms consistent with psychosis or formal thought disorder. His cognitive function was grossly intact, and insight and judgment were fair. The Vet demonstrated no thoughts of self-injury, suicide, violence, or homicide. The examiner diagnosed depressive disorder and indicated that the level of occupational and social impairment from his mental disorder resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning sastisfactorily, with normal routine behavior, self-care and conversation. VA outpatient treatment reports dated from October 2011 to January 2020 reflect that the Veteran has been assessed with depression and was using Clonazepam to help with anxiety in December 2012. He was noted to have tried Paxil and Trazodone in 2000 but had not used any medication since that time and declined additional intervention. In February 2014, the Veteran was noted to be gradually slipping into depression complicated by chronic pain and a difficult life and financial situation. He denied suicidal ideations or downward spiral. In December 2014, he was noted to have a normal appearance, normal behavior, and normal speech and language. He was alert and oriented. In January 2015, the Veteran was noted to have called in and spoken to a clinician who noted that the Veteran was planning to come in for a letter he needed for his job and he was reported to have become “hysterical” when he learned the letter was not specific enough about his ability to sit and stand. He made gestures that he would “just end everything” so he would not be in pain anymore. He was asked if he was suicidal and he reported he was “homicidal.” The clinician noted that the Veteran “ranted and raved” and then scheduled an appointment with another clinician on another day. In July 2015, he was noted to have a normal appearance, normal behavior, and normal speech and language. In January 2017, the Veteran was referred for a mental health consultation. He denied homicidal and suicidal ideations with no plan or intent. He denied a history of suicide attempts. The Veteran was clean, well-groomed, and appropriately attired. His demeanor was friendly, cooperative, and conversational. His mood was calm, and he had a full range of affect. There were no apparent psychotic symptoms. His thought process was linear and goal directed. His speech was clear and coherent with normal rate and rhythm. His judgment and insight were intact, and he was in no acute distress. In December 2019, the Veteran was reported to have unremarkable grooming, hygiene, and attire. He was calm, cooperative, and conversational. His memory, attention, and concentration were intact. His orientation was intact. He denied psychotic phenomena. His flow of thought was linear, and he was reality oriented. His mood was irritable, and his affect was constricted. His insight and judgment were intact. He denied self-harm or harm to others. He endorsed increased anxiety and irritability. Considering the pertinent evidence of record in light of the applicable rating criteria and rating considerations noted above, the Board finds that the Veteran’s symptoms, as described by him, his treatment providers, and examiners, most closely approximate the symptoms delineated in the criteria for no more than the currently assigned 50 percent rating under the General Rating Formula. The above-cited evidence reflects that the Veteran has displayed symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions, or recent events, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances. Collectively, these symptoms are of the type and extent, frequency and/or severity (as appropriate), to suggest occupational and social impairment with reduced reliability and productivity—the level of impairment contemplated in the 50 percent rating. The Board acknowledges the January 2015 VA entry which indicates that the Veteran called in and became highly agitated after learning that a letter he needed for work was not specific enough about his physical capabilities and he had vague assertions of “just ending everything” and being homicidal. The United States Court of Appeals for Veterans Claims (Court) has recently held that "...the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas." See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). However, the Board notes that the January 2015 entry is the sole documentation of any suicidal or homicidal ideation in the record. During all the Veteran's VA examinations and as documented in various treatment notes, the Veteran specifically denied suicidal and homicidal ideations, plan, and intent. Moreover, at no time has the Veteran been reported to be at risk for harm to himself or others. The Board further finds the Veteran has not been ot shown to experience most of the symptoms listed in the criteria for the next higher 70 percent rating as examples of those of the type and extent, frequency, and/or severity to result in major deficiencies in most areas. Notably, with the exception of the one-time entry noted above, the Veteran has consistently denied suicidal ideation. He has not reported obsessional rituals which interfere with routine activities, and his speech has been described as within normal limits. Although he has exhibited depression and anxiety, there is no showing that the Veteran was unable to function independently, appropriately and effectively. Also, he has not been shown to have impaired impulse control or spatial disorientation, and there is no clinical finding describing neglect of personal appearance and hygiene. Furthermore, an inability to establish and maintain effective relationships also has not been shown. Indeed, the Veteran has maintained positive relationships with his children and spouse. As the criteria for the next higher, 70 percent rating for the Veteran’s depressive disorder is not met, , it logically follows that the criteria for the maximum, 100 percent rating likewise wise are not met. As a final point, the Board notes that neither of the GAF scores assigned during the relevant period—66 in January 2011, and 60 in February 2013—alone, provides a basis for assignment of a rating in excess of 50 percent for the Veteran’s depressive disorder. Under the DSM-IV, GAF scores ranging from 70 to 61 are indicative of some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful personal relationships GAF scores ranging from 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning. As indicated, the Veteran was assigned GAF scores indicative of moderate or less impairment. As such scores are indicative of even less impairment than contemplated in the assigned, 50 percent rating, clearly, neither rating provides a basis for assignment of a rating higher than 50 percent for the Veteran’s depressive disorder at any pertinent point. The Board also reiterates that it is the symptoms shown, and not an assigned GAF score or an examiner’s assessment of the severity of a disability, which provides the basis for the assigned rating. See 38 C.F.R. § 4.126(a). Here, as discussed above, those symptoms are indicative of a level of occupational and social impairment consistent with no more than the assigned 50 percent rating. For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran’s depressive disorder, and that the claim for higher rating must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against assignment of any higher rating at any pertinent point, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). JACQUELINE E. MONROE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Cryan, 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.