Citation Nr: 20022401 Decision Date: 03/31/20 Archive Date: 03/31/20 DOCKET NO. 20-07 438 DATE: March 31, 2020 ORDER Entitlement to an initial rating in excess of 50 percent for major depressive disorder with alcohol disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Throughout the period on appeal, the competent and probative evidence of record shows that the Veteran’s service-connected depression manifested in no worse than occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army on active duty from August 1976 to August 1980. Initial Rating in Excess of 50 Percent for Major Depressive Disorder Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s major depressive disorder (MDD) was rated pursuant to the criteria under 38 C.F.R. § 4.130, Diagnostic Code 9434. See General Rating Formula for Rating Mental Disorders (General Rating Formula). Relevant to the issue on appeal, under the General Rating Formula, 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned where there is objective evidence demonstrating 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 next higher and maximum 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as 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 and place; memory loss for names of close relatives, own occupation, or own name. Symptoms listed in the General Rating Formula are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Id. Instead, VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment. Id. Although a veteran’s symptomatology is the primary consideration in assessing veteran’s disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in “most areas” for the 70 percent rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); 38 C.F.R. § 4.130. In Bankhead, citing from various sources, the Court first looked at how the term “suicidal ideation” is defined. See Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Court summed it up stating that “both passive and active suicidal ideation are comprised of thoughts: passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death.” Id. at 20. In applying the meaning of suicidal ideation to the rating criteria, the Court noted that suicidal ideation is only listed as a symptom in the criteria for a 70 percent disability rating. Id. There are no analogues at the lower evaluation levels and there are no descriptors, modifiers or indicators as to suicidal ideation in the 70 percent criteria (including no specific mention of “active” suicidal ideation, “passive” suicidal ideation, suicidal “intent,” suicidal “plan,” suicidal “prepatory behavior,” hospitalization, or past suicide attempts). Id. Thus, the Court found “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.” Id. The Court then turned to the specifics of the case in Bankhead. The Court found that, insofar as the Board required evidence of more than thought or thoughts to establish the symptom of suicidal ideation, it erred. Id. at 20. The Court found that the Board erroneously grafted the risk of self-harm onto the symptom of suicidal ideation in the criteria for a 70 percent evaluation. In other words, a veteran need not be at a risk, whether a high or low risk, of self-harm to establish the criteria of suicidal ideation. Id. at 20-21. The Court also found that the Board erred in applying “hospitalization” as the standard for assessing the severity of that symptom. Id. at 21. Rather, the evaluation of mental disorders requires consideration of the effects of each of the veteran’s mental symptoms on his or her social and occupational situation to determine the severity of the symptom. Id. Put differently, although suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas, it does not follow that suicidal ideation automatically warrants a 70 percent disability rating. The focus is on whether those suicidal ideations are of the severity and frequency to cause occupational and social impairment with deficiencies in most areas. The Veteran submitted a February 2018 private psychiatric assessment which notes his symptoms are loss of motivation, self-isolation, irritability, fatigue, sleeplessness, and sadness. Although the private examiner reported that the Veteran experiences at least four symptoms from a list that includes, “changes in appetite or weight, sleep, and psychomotor activity, decreased energy, feelings of worthlessness or guilty, difficulty thinking, concentrating or making decisions, or recurrent thoughts of death or suicidal ideation, plans or attempts,” the examiner failed to list suicidal ideation amongst the symptoms exhibited by the Veteran. The Veteran had a VA mental examination in April 2018 and the VA examiner opined his depressive symptoms were more reflective of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during period of significant stress or symptoms controlled by medication. The examiner noted symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work and social relationships, and suicidal ideation. The Veteran was observed to have psychomotor retardation, depressed mood, restricted affect, normal speech, and organized and logical thoughts. The Veteran reported intermittent suicidal thoughts, but denied having any current thoughts or having any homicidal ideation. He also reported crying spells but denied irritability. The Veteran also submitted a June 2018 private treatment letter from the same private examiner which notes the Veteran is “sad and depressed” all the time. The examiner noted the Veteran experiences mood swings and crying spells which affect “negatively affect” his marriage. June 2018 VA treatment records show a negative screening for depression. In April 2019, the Veteran reported feeling sad and depressed due to his chronic pain and not being able to do things he used to enjoy doing in the past. He denied any hallucinations, delusions or suicidal ideation. Importantly, the Veteran is not currently in receipt of service connection benefits for any musculoskeletal disorders. A May 2019 depression screening showed a score of 14 which indicates moderate depression. August 2019 VA treatment records indicate the Veteran’s PHQ-9 score was suggestive of severe depression. Notes from VA treatment records dated throughout the period on appeal reflect that the Veteran largely continued to report symptoms that justify, at most, the 50 percent rating currently assigned. Although the Veteran’s April 2018 VA examination notes the symptoms of suicidal ideation and difficulty in adapting to stressful circumstances including work or a worklike setting which are associated with a 70 percent rating, the total disability picture based on his depression symptoms does not show occupational and social impairment with deficiencies in most areas. In other words, his symptoms are of a similar severity, type, duration, and nature as those associated with a 50 percent rating, and no higher. There is no probative evidence of obsessive rituals which interfere with routine activities, near continuous panic, illogical speech spatial disorientation, impaired memory and impulse control, neglect of personal hygiene, or an inability to establish and maintain effective relationships. The Veteran has consistently denied experiencing hallucinations or delusions. Although the February 2018 psychiatric assessment reported the Veteran was irritable, there is no indication of accompanied violence. The June 2018 private treatment letter also notes the Veteran’s mood swings negatively affect his relationship with his wife, however, this symptom is accounted for in the 50 percent rating. The Board is sympathetic to the Veteran’s contention of that he deserves to be awarded a higher initial rating for his depression, however, he is not competent to determine whether a higher rating is warranted. In reaching this conclusion, the Board has considered not only the medical evidence of record, but the lay statements and testimony provided in the course of the appeal. The 50 percent rating for his depression adequately compensates him for his occupational and social impairment throughout the appeal period. Based on the foregoing, a disability rating greater than 50 percent for MDD is not warranted. The preponderance of the evidence is against the claim, and there is no doubt to be resolved. REASONS FOR REMAND TDIU is remanded. The Veteran currently has a service connection claim for a low back disability that is on appeal but pending with the Agency of Original Jurisdiction (AOJ) for a Board hearing. The Veteran filed his TDIU claim around the time he filed his service connection claim for a low back disability. However, he requested a Board hearing in conjunction with his back claim. Social Security Administration (SSA) records suggest that the Veteran’s lumbar and cervical issues preclude his ability to work. Therefore, it would be premature for the Board to adjudicate entitlement to TDIU prior to the adjudication of the service connection claim for a low back disability. The issues are intertwined. The matters are REMANDED for the following action: After the pending service connection claim for low back disability is resolved, readjudicate the TDIU claim. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.N. Shannon 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.