Citation Nr: 20026069 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 19-34 272 DATE: April 15, 2020 ORDER A rating of 70 percent for major depressive disorder (MDD) and posttraumatic stress disorder (PTSD) is granted. FINDING OF FACT For the entire period on appeal, the Veteran’s MDD and PTSD have manifested through occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking or mood. CONCLUSION OF LAW For the entire period on appeal, the criteria for a rating of 70 percent for MDD and PTSD, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.3, 4.7, 4.10, 4.130, DC 9411-9434.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1986 to August 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2018 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the rating period on appeal based on the facts found. Hart v. Mansfield, 21 Vet. App. 505, 509-510(2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). A rating in excess of 50 percent for MDD and PTSD The Veteran is currently rated at 50 percent for his major depressive disorder and PTSD under diagnostic code 9411-9434. Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, a 50 percent rating is warranted if the disability is productive of 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. 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. 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 hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that “the presence of all, most, or even some, of the enumerated symptoms” is not required to support a disability rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, “VA must engage in a holistic analysis” of the severity, frequency, and duration of the signs and symptoms of the veteran’s mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The Veteran submitted a PTSD disability benefits questionnaire dated from April 2014. Symptoms documented included depressed mood, anxiety, near-continuous panic or depression, and mild memory loss. The examiner indicated that he had total occupational and social impairment. The Veteran was afforded a VA examination in August 2018. Documented symptoms included depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, night terrors, avoidance, and hypervigilance. Upon examination, the Veteran was alert, oriented, dressed neat and appropriate, with good grooming and hygiene. His thought processes were clear, coherent, and goal oriented. He had a constricted range of affect, but was cooperative. He endorsed suicidal ideation with no plan or intent to harm himself. He denied current homicidal ideation, but reported fantasies about killing his wife’s boyfriend in 2017. He reported a dearth of social activities because he did not like or trust others. While working overseas, he had only one friend. He skyped with his wife, daughter, and son and the communication was of good quality. When he returned in 2017, he separated from his wife. His sixteen-year-old daughter moved in with him and he described an active involvement in raising her. He denied any emotional difficulty with parental responsibilities. He also lived with a friend and her eight-year old son with whom he assisted in raising. He worked as a construction inspector and denied any problems with work relationships, tardiness, absences, productivity, efficiency, or disciplinary problems. He generally received outstanding performance evaluations, except for the most recent average evaluation because his co-workers needed time to adjust to his snide sense of humor. The examiner determined his symptoms manifested in occupation and social impairment with reduced reliability and productivity. Medical treatment records from April 2019 to September 2019 document that he was mildly to moderately depressed with an appropriate affect. He denied any recent panic attacks, but reported episodes of anger. He experienced flashbacks and night terrors. He denied auditory or visual hallucinations. He continued to live with his daughter, friend, and her son. He reported being unhappy with little energy and motivation. He worked on renovating an old farmhouse which helped occupy his mind. He had passive death wish thoughts, but denied suicidal plan or intent. In his notice of disagreement dated August 2019, he reported that he had issues with work, family relations, spatial disorientation, and loss of thoughts. He indicated it led to his divorce after twenty-five years of marriage. He also conveyed that he had almost daily suicidal ideations and thought he would be better off dead. Since his move back to Pennsylvania two years prior, he had not formed any friendships outside of his family. In September 2019 correspondence, a co-worker noted that he noticed the Veteran avoid social interactions on several occasions including work cookouts and family dinners at the co-workers home. In his October 2019 Form 9, the Veteran indicated his anxiety levels were increasing, which affected his relationships and outings. He reported having a difficult time communicating because his thought process clouds up. He also reported outbursts of anger and more nightmares. After review of the competent and probative evidence, the Board finds that a rating of 70 percent, but no higher, for the entire period on appeal, is warranted for PTSD and major depressive disorder. He has difficulty in maintaining relationships. He has high anxiety and anger outbursts that affect his relationships. While the Veteran has denied suicidal ideations at various points during the period on appeal, he has had has suicidal ideations and some homicidal ideations. See Bankhead, 29 Vet. App. at 20 (“[T]he 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 id. (affirming that suicidal ideation does not require suicidal intent, a plan, or prepatory behavior). He has also had impaired impulse control. As such, the Board finds that the frequency and severity of such symptoms most nearly approximate deficiencies in most areas, such as judgment, thinking, or mood. The Board also finds that a higher rating of 100 percent is not warranted as the competent evidence does not reflect total social and occupational impairment. In this regard, for example, he does not have persistent delusions or hallucinations, gross impairment in thought processes or communication, or grossly inappropriate behavior. The Board acknowledges the passive suicidal ideations but finds that when evaluating the period on appeal as a whole, he is not in persistent danger of harming himself or others as he has denied suicidal and homicidal ideations during various times. The Board acknowledges his high anxiety, but finds that such social function does not reflect total social impairment. See Merriam-Webster, Total, https://www.merriam-webster.com/dictionary/total (defining “total” as “comprising or constituting a whole: entire” and second entry states “absolute, utter”). The evidence reflects that although the Veteran is divorced, he lives with a friend and is very involved in raising his daughter and helping raise his friend’s child. The Board finds that such evidence tends to weigh against a finding of total social impairment. With regard to occupational impairment, the Veteran is employed and had indicated that he did not have issues at work while attaining good evaluations. The April 2014 DBQ examiner indicated total occupation and social impairment. It is noted that this is prior to the current period on appeal and was previously considered in a November 2014 rating decision. The Board has considered the benefit of the doubt in making its decision and has applied where appropriate. It is noted that such a determination is within the province of the Board’s fact-finding authority after reviewing the relevant medical and lay evidence. See Jefferson v. Principi, 271 F.3d 1072, 1076 (Fed. Cir. 2001) (recognizing that the Board had inherent fact-finding ability). Therefore, after review of the record, the Board places less weight on the determination by the DBQ examiner in light of other competent evidence of record that is not as remote in time, to include the 2018 VA examination report, medical treatment reports from 2019, and the Veteran’s competent lay statements). As such, the Board finds that when the Veteran’s disability picture for his service-connected MDD and PTSD is viewed with the relevant, competent evidence of record in mind, to include the medical treatment records and the 2018 VA examination, the Veteran’s overall disability picture is more nearly approximated by the 70 percent evaluation, and not a 100 percent rating. Therefore, after looking at the totality of the Veteran’s MDD and PTSD disability picture, the Board finds that the evidence warrants a rating of 70 percent, but no higher, for the entire period on appeal. 38 U.S.C. § 5107(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.