Citation Nr: 21001762 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 17-28 750 DATE: January 11, 2021 ORDER A rating in excess of 50 percent for depressive disorder with anxiety disorder prior to April 22, 2014, is denied. A 70 percent rating, but no more, for depressive disorder with anxiety disorder, is granted effective April 22, 2014, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran served on active duty from March 1990 to June 2011; he has been 100 percent disabled since July 2011. 2. Prior to April 22, 2014, a psychiatric disorder was manifested by subjective complaints of depression, anxiety, sleep impairment, and disturbances of motivation and mood; objective findings include good hygiene, linear speech, no suicidal or homicidal ideations, and no hallucinations or delusions. 3. Since April 22, 2014, a psychiatric disorder has been manifested by subjective complaints of depression, anxiety, sleep impairment, and disturbances of motivation and mood; objective findings showed occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 50 percent for depressive disorder with anxiety disorder prior to April 22, 2014, have not been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2020). 2. The criteria for a 70 percent rating, but no more, for depressive disorder with anxiety disorder since April 22, 2014, have been met. 38 U.S.C. §§ 1110, 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, DC 9434 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In January 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In May 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. All psychiatric disabilities are evaluated under a General Rating Formula for Mental Disorders (“General Rating Formula”). Under the General Rating Formula, a 50 percent rating is warranted under the General Rating Formula for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks occurring more than once a week, difficulty in understanding complex commands, impairment of short-term memory (i.e. retention of only highly learned material or forgetting to complete tasks), impaired judgment, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted under the General Rating Formula for occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted under the General Rating Formula 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 the ability to maintain minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. The symptoms listed under the rating criteria are meant to be examples of symptoms that would warrant the rating, but they are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). If the evidence shows that a veteran experiences symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Furthermore, the rating code requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment at a level consistent with the assigned rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013).   Prior to April 22, 2014 Turning to the evidence, at an April 2011 VA examination, the Veteran complained of depressed mood, excessive anxiety, withdrawal from family and restricted affect. He also reported a lack of energy, and that his symptoms were ongoing. He reported little motivation to go to work, and difficulty working with others, as well as falling asleep. He also reported mild memory impairment. He was found to be alert and oriented to person, place and time. His mood and behavior were normal, and his comprehension was normal. His memory was noted to be intact, and he was answering questions appropriately. He was appropriately groomed and dressed. The examiner found no obsessive or compulsive tendencies, and he denied any suicidal or homicidal ideations. The Veteran did not have any hallucinations or delusions, and he was found capable to manage his financial affairs. He also reported working for the past 10 years as a department head chief, with a good relationship with his supervisor and co-workers, though occasionally losing time due to various health disorders. The examiner found that the psychiatric disorder caused occupational and social impairment with occasional decrease in work efficiency and an intermittent ability to perform occupational tasks although generally functioning satisfactorily. The examiner noted that this finding was supported by the Veteran’s reports of depression, panic attacks weekly or less often, chronic sleep impairment, and mild memory loss. In July 2013 VA treatment notes, the Veteran reported decreased energy and motivation, and trouble sleeping. He reported suicidal thoughts but without any plan or intent to harm himself. He reported living with his girlfriend, and going on social gatherings with her, as well as a good relationship with his mother. He was alert and oriented to person, place and time, his speech was normal, and he was appropriately groomed and dressed. His thoughts were linear, and he denied any homicidal ideation or intent. There were no psychomotor problems or psychosis observed. VA treatment notes from August 2013 to March 2014 continued to show symptoms consisting mainly of depression and anxiety, but with a denial of any suicidal ideation or intent. Additional VA and private medical records were also reviewed for the relevant time period. While mental health treatment was noted, they failed to show any symptoms that increased sufficiently to warrant a higher rating. Taken together, the medical evidence does not support a rating in excess of 50 percent prior to April 22, 2014. Specifically, the Veteran was found to have depression and anxiety with sleep impairment. At no point was he found to exhibit suicidal or homicidal intent or plan, obsessive rituals, spatial disorientation, neglect of personal hygiene, illogical speech, near continuous panic affecting the ability to function appropriately, or an inability to maintain effective relationships. While suicidal ideation was sporadically noted, he consistently denied any intent or plan. Additionally, he was gainfully employed in a supervisory position for a considerable amount of time. He also maintained a romantic relationship and social relationships with friends and family. He was also consistently found able to manage his financial affairs, was always cooperative, and appropriately groomed. The symptoms that the Veteran pointed to as most serious were anhedonia, insomnia, and concentration problems. Importantly, all of those symptoms are contemplated in the assigned 50 percent rating. Thus, for the time period prior to April 22, 2014, the medical evidence did not support a rating higher than 50 percent. Since April 22, 2014 At an April 2014 VA examination, the Veteran reported symptoms of depression, hopelessness, guilt, dysphoric moods, and anxiety. He reported being in a new relationship but being hesitant to commit, and feeling he had nothing to offer his partner. He reported unstable living, moving back and forth between his mother and his girlfriend. He also noted a desire to remain isolated and withdrawn, and that he had not seen his kids in several years. He described his current home and family life as becoming intolerable, mostly due to his stepfather, and his mother refusing to address any of his problems. He reported that he stopped working his previous job and it was due to him mostly wanting to be alone. The examiner found that his psychiatric disorders manifested as occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner found that the Veteran was alert and oriented, and his interaction was pleasant and polite. His affect was labile, tearing up frequently, and his mood was chronically depressed. He denied any suicidal ideations, and his speech and language were intact. His thought processes were logical and coherent, with the exception of unreasonable guilt. He denied any hallucinations, delusions, or other psychotic symptoms. He was also found capable of managing his financial affairs. In February 2015 and May 2017 VA treatment notes, the Veteran denied any suicidal or homicidal intent, ideation or plan. He also denied any hallucinations, delusions or obsessions. His psychomotor function was intact, as well as his memory and thought processes. He was also oriented to person, place, time and situation. In June 2017 private treatment notes, the Veteran endorsed depression and anxiety. He also had a loss of interest and pleasure in things he used to enjoy. He also reported concern over his memory and cognitive skills. He reported that he was engaged to his partner of over five years. He denied any suicidal or homicidal ideations. The treatment provider noted that he was adequately groomed and dressed, with poor eye contact. His speech was quiet, but normal in rate and rhythm. He was also attentive, alert and oriented. The treatment provider noted that his memory tests, while borderline, were mild, and that there was a high chance the Veteran was exaggerating symptoms. The examiner noted that his neuropsychological testing revealed nothing conclusive. VA and private treatment notes between September 2019 and June 2020 revealed that he was appropriately groomed, had proper eye contact, was cooperative, calm, pleasant and responsible. There was no apparent motor behavior abnormality noted, his mood was dysphoric, and his speech was normal. His thought processes were logical, coherent, organized, and goal directed. He denied any suicidal or homicidal ideation, delusions, hallucinations, or obsessive behavior, and he was alert and oriented to person, place and time. At an August 2020 VA examination, the Veteran reported depression, anxiety, and panic attacks. He reported living alone and avoiding most social situations. He reported only connecting with his neighbor and mother. He also reported that he had not worked since his last examinations. He stated that he often felt panic due to his physical health and the isolated life he was living. He stated that he was capable of grocery shopping, with occasional anxiety, cooking for himself, and maintaining most activities of daily living, including cleaning and maintaining his own home. He reported completing his chores and working out two times per week. Reported symptoms included depression, anxiety, sleep impairment, mild memory loss, disturbance of mood and motivation and establishing relationships, as well as inability to adapt to stressful circumstances. The examiner found that he was alert and oriented to person, place, time and situation. His mood was moderately anxious, and he recalled most pertinent information. He had poor insight, but his judgment was intact, and he denied any psychosis. He denied any suicidal or homicidal ideation, delusions, hallucinations or obsessive behavior. The examiner found that his psychiatric disorders manifested as occupational and social impairment with deficiencies in most areas, such as work, school, and family. Based on the above, a 70 percent rating, but no more, is warranted from April 22, 2014. In this regard, both VA examiners who have evaluated the Veteran during the relevant period have found his psychiatric disabilities manifested as occupational and social impairment in most areas. Additionally, these findings were corroborated by the available treatment records which reflect frequent treatment, and signs of deterioration of social and work relationships, and frequent panic attacks and isolation. However, the evidence does not support a rating of 100 percent for depressive disorder with anxiety disorder. Specifically, total occupational and social impairment due to a psychiatric disorder has not been shown. The evidence shows that his disorders have been manifested by continuous anxiety, emotional and social withdrawal, hypervigilance, irritability, sleep disturbances, feelings of hopelessness and helplessness, work difficulties due to anger and irritability, a volatile personality, depression, and passive suicidal ideation without intent. Such symptomatology is consistent a 70 percent rating. However, examinations and treatment records do not document incidents of hallucinations, delusions, or obsessional behavior. For example, at no point did the evidence support a finding of persistent danger of hurting self or others, inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name, nor was evidence of a similar type and degree of such symptoms found. Rather, the Veteran consistently appeared appropriately groomed, capable of maintaining effective relationships, capable of maintaining activities of his daily life, abilities to seek psychiatric treatment and cooperatively complete examinations, and capability to manage his financial affairs. Thus, the medical evidence does not support a schedular 100 percent rating. As noted above, he is already assigned a 100 percent disability rating effective the day after discharge from active duty. With regard to both appeals, the Board has also considered the Veteran’s lay statements that his disability is worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s depressive disorder with anxiety disorder has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which this disability is evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.