Citation Nr: 21002997 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 16-04 403 DATE: January 19, 2021 ORDER Entitlement to disability ratings for depressive disorder higher than 30 percent from September 23, 2011, and 50 percent from December 5, 2013, is denied. FINDINGS OF FACT 1. From September 23, 2011, to December 4, 2013, the Veteran’s depressive disorder was manifested by depression, anxiety, sleep disturbance, and irritability that produced occupational and social impairment without more than occasional decrease in work efficiency or more than intermittent periods of inability to perform occupational tasks, while still allowing generally satisfactory functioning and normal routine behavior, self-care, and conversation. 2. The Veteran’s depressive disorder has been manifested by depression and anxiety, with disturbances of mood and motivation, that have produced occupational and social impairment with reduction of reliability and productivity, but without deficiencies in family relations, judgment, thinking, or most areas.   CONCLUSION OF LAW The criteria for disability ratings for depressive disorder higher than 30 percent from September 23, 2011, and 50 percent from December 5, 2013, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.130 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service from July 1968 to July 1970. In September 2011 he sought service connection for acquired psychiatric disability, including post-traumatic stress disorder (PTSD). In a January 2012 rating decision, a Department of Veterans Affairs (VA) Regional Office (RO) denied service connection for PTSD or other psychiatric disorder. The Veteran appealed that decision to the Board of Veterans’ Appeals (Board). In an April 2013 rating decision, the RO granted service connection, effective September 23, 2011, for depressive disorder. The RO assigned a disability rating of 30 percent. The Veteran appealed that rating to the Board, seeking a higher rating. In December 2013 the Veteran sought a total disability rating based on individual unemployability (TDIU). In a January 2015 rating decision, the RO continued the 30 percent rating for the Veteran’s depressive disorder. The RO denied a TDIU. The Veteran continued his appeal of the rating for his depressive disorder. In December 2018 the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge. In April 2019 the Board remanded the increased rating issue to the RO to develop additional evidence. In a July 2020 rating decision, the RO increased the rating for the Veteran’s depressive disorder from 30 percent to 50 percent, effective December 15, 2013. Disability ratings for depressive disorder The Veteran’s appeal is for disability ratings for his depressive disorder disability ratings higher than 30 percent from September 23, 2011, and higher than 50 percent from December 5, 2013. He contends that his disorder has produced impairment that warrants higher ratings. VA assigns disability ratings by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, 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. The United States Court of Appeals for Veterans Claims (Court) has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Court also has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the claim for an increased rating was filed until a final decision is made. See Hart. v. Mansfield, 21 Vet. App. 505 (2007). The Court has indicated that the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The rating schedule evaluates mental disorders, including depressive disorders, under a General Formula for Mental Disorders, which follows: 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. … 100 percent 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 worklike setting); inability to establish and maintain effective relationships. … 70 percent   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. … 50 percent Occupational and social impairment with occasional decrease in work efficiency and intermittent periods 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), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). … 30 percent Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. … 10 percent A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. … 0 percent 38 C.F.R. § 4.130. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall 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). When evaluating the level of disability from a mental disorder, VA also will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase 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 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio, 713 F.3d at 114-118. The Veteran’s VA treatment records reflect that VA clinicians who saw him provided assessments of depression and adjustment reaction in November 1998, dysthymia in May 2005, cyclothymic disorder in January 2007, adjustment disorder in October 2009, and alcohol abuse in remission and anxiety state in March 2010. In VA treatment in April 2011, the Veteran reported that he had four to six alcoholic drinks several days per week. He denied depression, anxiety, or insomnia. Clinicians provided assessments of depression and possible alcohol abuse and dependency. In a September 2011 statement, the Veteran wrote that in service a truck he was riding in hit a land mine, and the explosion threw him from the truck. He indicated that since then he had experienced flashbacks and dreams. He reported that presently he had a lot of stress, depression, and anxiety. In November 2011 the Veteran had a VA PTSD examination. He reported that during service his truck hit a land mine and he was blown out of the truck. He indicated that after service he was arrested many times, including for threatening violence and for assault. He stated that most of his legal troubles occurred while he was drinking. He reported that after service he held employment, including in real estate sales. He stated that over time pain from physical disorders, including disorders affecting his back and leg, made him unable to work. He indicated that he had been unemployable from 1992 forward. He related that, when he was employed, he became bored and restless with each job, and he also was affected by his alcohol use. The Veteran reported having VA mental health treatment visits once or twice a year over the past ten years. He related diagnoses of affective disorder, anxiety, depression, and possible PTSD. At the examination, he reported that he was depressed. He reported occasional nightmares and flashbacks. He stated that pain from physical disorders interfered with sleep. He indicated that pain medication made him sleepy during the day. The examiner found that the Veteran was oriented and had normal speech and thought processes. The examiner listed diagnoses of alcohol abuse, in remission, and personality disorder with narcissistic and dependent traits. With regard to occupational and social impairment, the examiner marked the space indicating that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. In VA treatment in December 2011, the Veteran reported depression and anxiety, and a history of traumatic experiences in service in Vietnam. Clinicians assessed the Veteran with PTSD in December 2011 and with PTSD, depression, and anxiety in January 2012. From January 2012 he was treated with a medication for depression and a medication for anxiety and sleep disturbance. In March 2012 he reported treatment for PTSD, with symptoms including nightmares, intrusive recollections, irritability, anger, isolation, and distrust of others. The Veteran’s VA treatment records reflect that he was in a motor vehicle accident (MVA) in May 2012. He sustained severe injuries including multiple fractures. Over several months he had inpatient treatment including intensive care and rehabilitation. In October 2012 he was discharged to home, with plans for ongoing outpatient treatment. In the Veteran’s VA mental health treatment in January 2013, his treating psychiatrist noted ongoing depression and PTSD, with erratic sleep, nightmares, depression, and anxiety. She observed that he had clear speech and a euthymic mood. On VA PTSD examination in January 2013, the Veteran reported psychological distress beginning around the time of his separation from service. He related a history of alcohol and marijuana use to escape from that distress. He stated that he stopped alcohol and marijuana use a few years ago. He related a history of numerous physical fights, most recently three or four years ago. He told of lifelong gambling addiction, and of a history of tickets for speeding and reckless driving. He related his severe injuries in the 2012 MVA. He stated that, for a few weeks in late 2012, he felt paranoid about authority and the government. He reported that presently he was on antidepressant medication. He reported feeling distant and unattached. He stated that at times he felt down. He related having poor concentration. The examiner administered psychological tests and interviewed the Veteran about his psychological symptoms. The examiner listed a diagnosis of depressive disorder. The examiner also listed diagnoses of alcohol dependence and cannabis abuse, each in remission. The examiner found that the depressive disorder produced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. In VA mental health treatment in August 2013, the Veteran reported nightmares and erratic sleep. He stated that he had not worked in years. He indicated that he could not stand loud noises or being in a crowd. He stated that a friend helped him with cooking and household chores. He related that he did some yard work and spent time on a computer. The psychiatrist observed that the Veteran’s mood was depressed. His attention, concentration, and memory were fair. The psychiatrist stated that, in view of his medical problems since the MVA, and his emotional problems, his prognosis for gainful employment was poor. In December 2013 the Veteran reported nightmares and disturbed sleep. He indicated that he stopped working in 1992 because he could not be around people. He stated that his present activities included reading and working on a computer. He reported some difficulty with recent memory. The psychiatrist observed an anxious, dysphoric mood, with no apparent deficits in attention or concentration. In a December 2013 letter, the Veteran’s treating VA psychiatrist wrote that the Veteran had depression and symptoms of PTSD. She noted that he had been unemployed since 1992. She referred to his report that, when he worked, he could not cope with the pressure of his job and he could not be around people. She also noted that he had been involve in a 2012 MVA. “In view of the medical and psychiatric problems,” she wrote, “prognosis for gainful employment is poor.” In VA mental health treatment in March 2014, the Veteran reported recent physical illness. He stated that he was not motivated to do anything. He related that he spent time on his computer. He indicated that he was planning outdoor projects to pursue when the weather improved. The psychiatrist observed an anxious, depressed mood, fair judgment, and no apparent deficits of attention or concentration. In June 2014 the Veteran reported doing yard work and painting when his physical condition allowed. He stated that he cooked some meals and sometimes went to a restaurant. In October 2014 he reported that recently he had better sleep but more frequent intrusive recollections. The psychiatrist observed an anxious, dysphoric mood, fair judgment, and no apparent deficits of attention or concentration. On VA mental disorders examination in January 2015, the examiner noted the Veteran’s history of depressed mood, anxiety, and chronic sleep impairment. The Veteran reported that he lived alone. He reported regular interaction with family members and friends. He indicated that he cooked for himself and went to restaurants with friends. He reported depression, guilt, and loss of interest in activities he previously enjoyed. He related having nightmares about every two weeks. He reported ongoing sleep impairment and tiredness most of the time. He indicated frequent anxiety. He related that he felt empty and disconnected. He indicated that he continued on antidepressant medication and that he saw his VA psychiatrist every three months for prescription renewals. The examiner observed that the Veteran had appropriate affect and normal thought content. There was no overt impairment of memory, concentration, or attention. Psychological testing showed evidence of depression. The examiner listed diagnoses of depressive disorder with anxious distress, and of alcohol use disorder in remission. With regard to occupational and social impairment, the examiner marked the space indicating occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. The examiner expressed the opinion that the Veteran’s depression caused him mild difficulty in interacting with the public, but that he should be able to work with others with little to no problems. The examiner opined that his levels of attention, concentration, memory, motivation, and drive should not significantly affect his capacity for occupational functioning. In VA mental health treatment in December 2015, the Veteran reported depression. He related loss of interest in things he used to enjoy. He denied suicidal or homicidal ideation. His psychiatrist adjusted his dose of antidepressant medication. In January 2016 the Veteran reported ongoing symptoms. In a January 2016 statement, the Veteran wrote that he was manic depressive and had extreme mood swings. He stated that at his most recent VA examination he was in a very high mood and presented a very positive impression of his condition. He indicated that during periods of bad mood, his condition was very different. He reported that presently he was in a depressed period, and he did not want to bathe, cook, eat, clean up, or do anything. In October 2016 the Veteran transferred his VA mental health treatment to a VA facility closer to his home. In December 2016 his medications were adjusted. In February 2017 the treating clinician observed that he had normal speech and thought and no apparent deficits of attention or concentration. Antidepressant medication was continued. In February 2018 the Veteran expressed that the prescribed medication was effective. In August 2018 he expressed that he enjoyed doing yard work using a riding mower. It was arranged that he would receive his antidepressant medication through a VA primary care provider. In the December 2018 Board hearing, the Veteran reported VA treatment of his depression with antidepressant medication. He related that the prescription was renewed through a primary care provider, without visits to a mental health care provider. He indicated that he sometimes had trouble interacting with others in public. He stated that he did his own shopping. He reported feeling anxiety when he had appointments. He indicated that sometimes he felt unmotivated and put off bathing and laundry. He stated that he managed his bills but felt stressed by any unexpected bill. He indicated that his depression would make him unable to handle working in a regimented or constricted situation. The Veteran’s VA primary care notes from 2019 and 2020 reflect ongoing prescription of an antidepressant. In September 2019, he reported that pain made him unable to tolerate much driving. He stated that he showered, and he went out to buy groceries, but he did not clean his house. He indicated that he would be amenable to having a home health aide. On VA mental disorders examination in November 2019, the examiner noted that the Veteran psychiatric medication regime was stable, and that he received renewals in a primary care setting. The Veteran indicated that he lived alone and had two ongoing friendships. He reported that most days he went to a local restaurant for breakfast and sat with acquaintances. He stated that he tended a garden and engaged in home-based leisure pursuits, such as watching television. He related that he last worked in 1982, when he had to stop working because of increasing back pain and the overall deterioration of his health. He stated that over the last few years he had decreased control over his anger, which he expressed by yelling. He related having racing thoughts, increased distractibility, and flashbacks to Vietnam. He stated that at night he got up two or three times, and that he got about six hours of sleep. He stated that he had a bad dream once every few months. He related lowered motivation and increased procrastination, such that his household chores took longer. The examiner observed that the Veteran was alert and coherent, with intact insight and judgment and normal speech and thought processes. The examiner provided a diagnosis of other specified depressive disorder, with anxious distress. The examiner stated that diagnoses regarding alcohol and marijuana use no longer applied, as alcohol use had been in remission for more than ten years, and marijuana use was minimal and without significant impact. With regard to occupational and social impairment, the examiner marked the space indicating occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. On VA mental disorders examination in December 2019, the Veteran reported decreased energy, appetite, motivation, and enthusiasm. He expressed that he did nothing but sit. He stated that he was in contact with two friends and his brother by telephone and email. He related that he did not think that his mental health affected his social life or relationships. He expressed that he did not feel that his mental health affected his ability to work. He indicated that he had not been able to work since 1982, and that he wished he could work. In response to questions, he affirmed both hopelessness and general good spirits. He related that his mood was up half the time and down half the time. The examiner observed that the Veteran’s mood was irritable at times but generally neutral. He had normal speech and language abilities, organized and appropriate thoughts, and adequate judgment. The examiner found that the Veteran’s symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner related a diagnosis of major depressive disorder. The examiner marked that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner stated that the Veteran’s irritability, low energy, and low interest and motivation would likely affect his ability to function effectively in a work environment. The examiner reported that the Veteran did not appear to have significant difficulty with concentration, attention, or memory. From the 2011 establishment of service connection through December 4, 2013, the Veteran’s depressive disorder was manifested by depression, anxiety, sleep disturbance, and irritability that sometimes affected his performance of tasks and his interaction with others. Clinicians who treated or examined him noted his disturbances of sleep, energy, and mood, but generally found his speech, thought processes, attention, memory, and concentration to be fair to normal. The Veteran reported maintaining a small number of family and friend relationships. In his routine behavior, self-care, and conversation, he generally functioned satisfactorily. He did not have more than occasional decreases in efficiency or more than intermittent periods of inability to perform tasks. His disability picture did not meet or approach the criteria for a rating higher than 30 percent. The Board denies a rating higher than 30 percent for that period. While the treating psychiatrist noted a poor prognosis for gainful employment, she attributed that prognosis to a combination of medical and psychiatric problems. As it is not clear what part of the prognosis is due to the service-connected depressive disorder, that statement does not appear to raise a new claim for a TDIU. Evidence from 2013 to 2020 indicates that the Veteran’s depressive disorder has more recently produced some worsening effects, including decreased motivation. However, his depressive disorder has not been noted to produce deficiencies in his family relations, judgment, or thinking. The occupational and social impairment from the disorder thus has not produced deficiencies in most areas. The disability picture has not met or approached the criteria for a rating higher than 50 percent. The Board denies a rating higher than 50 percent for any part of the appeal period. K. PARAKKAL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kunz, Kirsten 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.