Citation Nr: 21004395 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-22 141 DATE: January 27, 2021 ORDER Entitlement to a 70 percent disability rating prior to January 3, 2020, for major depressive disorder, severe without psychosis associated with bilateral hearing loss (MDD) is granted. Entitlement to a disability rating in excess of 70 percent from January 3, 2020, for major depressive disorder, severe without psychosis associated with bilateral hearing loss (MDD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 3, 2020, is remanded. FINDINGS OF FACT 1. Prior to January 3, 2020, the Veteran’s MDD was manifested by occupational and social impairment with deficiencies in most areas. 2. From January 3, 2020, the Veteran’s MDD was not manifest by total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a 70 percent disability rating prior to January 3, 2020, for MDD have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2019). 2. The criteria for a disability rating in excess of 70 percent from January 3, 2020, for MDD have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1962 to April 1963. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in July 2017. A transcript of the hearing is of record. The Board remanded this matter in October 2018. The Board finds there has been substantial compliance with its October 2018 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board’s remand.) The Board notes that an issue involving a proposed reduction of the rating for hearing loss was resolved in the Veteran’s favor in a decision of August 2020 and is therefore moot. Entitlement to a 70 percent disability rating prior to January 3, 2020, for major depressive disorder, severe without psychosis associated with bilateral hearing loss (MDD) and entitlement to a disability rating in excess of 70 percent from January 3, 2020, for major depressive disorder, severe without psychosis associated with bilateral hearing loss (MDD) Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2019). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserts that he is entitled to higher disability ratings for his PTSD. Specifically, the Veteran contends that he should receive a disability rating in excess of 30 percent prior to January 3, 2020, and in excess of 70 percent thereafter. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] 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 under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. For example, “in the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Thus, assessing whether an increased evaluation is warranted requires a two-part analysis: “The... regulation contemplates[: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.” Id. at 118. Pursuant to Diagnostic Code 9411, a 30 percent rating is warranted when there is 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), and chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events). 38 C.F.R. § 4.130, Diagnostic Code 9411. A 50 percent evaluation 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. Id. A 70 percent evaluation is warranted 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 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, or 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. Id. A maximum 100 percent evaluation is for application when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. In evaluating the evidence, the Board has considered the various Global Assessment of Functioning (GAF) scores that clinicians have assigned. The GAF is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health illness. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV); Carpenter v. Brown, 8 Vet. App. 240 (1995). The Board also notes, however, that the GAF scale was removed from the more recent DSM-V for several reasons, including its conceptual lack of clarity, and questionable psychometrics in routine practice. See DSM-V, Introduction, The Multiaxial System (2013). A GAF score of 61-70 reflects 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, and has some meaningful interpersonal relationships. A GAF score of 51-60 indicates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). A GAF score of 41-50 reflects serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF score of 31-40 reveals some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). DSM-IV at 46-47. Prior to January 3, 2020 In a February 2014 VA treatment record, the Veteran reported increased anxiety due to his wife’s illness. The Veteran also reported increased anger and irritability, as well as decreased sleep. He said he was sleeping about 4 hours per night with nightmares. In a September 2014 VA treatment record, it was noted that the Veteran was last seen in July 2014 and interim history showed that the Veteran reported having had thoughts of hurting himself in his trip to Alaska. He said that he had suicidal thoughts off and on without any attempts. The Veteran denied any suicidal thoughts at the time and said he knew it was wrong because he was Catholic. The Veteran had moderate anxiety and was depressed. He slept 4 hours per night, which was not enough. Upon examination, the Veteran was well groomed with good hygiene. He was cooperative and eye contact and activity were adequate. Speech was clear and mood was depressed. Affect was full and the Veteran denied suicidal or homicidal ideation. Thought content was adequate and thought process was logical. The Veteran was oriented to person, time, and place. Intellect, insight, and judgment were average. The treating physician stated that based on discussion of the Veteran’s interim symptoms since the last visit, the Veteran was instructed to increase medication, do a suicide risk assessment, and was referred to counseling. In a June 2016 VA treatment record, the Veteran said he felt depressed. He discussed anhedonia in light of concerns for his wife’s health and the fact that his hearing loss and MDD disabilities were reduced. The Veteran slept 5 hours with awakenings. The Veteran’s wife said he was restless. Upon examination, the Veteran was well groomed and cooperative. Eye contact and activity were adequate. Speech was clear and mood was depressed. Affect was restricted and the Veteran denied suicidal or homicidal ideation. Thought process was logical. Immediate memory was intact, recent memory was impaired, and remote memory was intact. The Veteran was oriented to person, place, and time. Intellect was average. Insight and judgment were adequate. The examiner noted that the Veteran had a poor response to increased medications; additional medication was added. At the July 2017 Board hearing, the Veteran’s representative stated that the Veteran’s MDD disability rating was reduced because he goes to evaluations and was not able to express a lot of the symptoms he was suffering from. The representative said that statements had been submitted from people that see the Veteran on a daily basis, as well as a statement from the Veteran as he had a hard time communicating to people. The Veteran was unable to come out of his home very often; specifically, it was hard to get the Veteran to the Board hearing. The Veteran had problems with being in a social environment. The Veteran testified that he was not able to maintain proper work or stay in a job because he got nervous and also people would tell him something and he would get angry. The Veteran said that he did not “do well with a bunch of people,” and spent a lot of time by himself. In a May 2017 VA treatment record, the Veteran reported ongoing struggles with managing his moods. Upon examination, the Veteran was oriented, presented with good eye contact, and was cooperative and pleasant. There was no evidence of agitation. Speech was normal. The Veteran presented with flattened affect congruent to his mood. Thought process was organized and goal oriented. Memory was intact and the Veteran presented with good insight and judgment. In a July 2017 statement, the Veteran’s brother, R.L., stated that the Veteran used to be friendly and for “some time now” had drifted away and did not participate with family gatherings. R.L. said that he did not visit the Veteran as much because he was afraid he would snap at him or hit him. The Veteran kept to himself a lot, and when R.L. was with his brother, the Veteran seemed to be extra cautious when doing something and did not work as fast as he used to. The Veteran seemed to stumble more than he should. In another July 2017 statement, the Veteran’s sister, M.L., stated that in the past few years, the Veteran had changed socializing with them. He was no longer fun loving and did not want to be around people; he was withdrawn and kept to himself. M.L. said that all 12 brothers and sisters noticed his behavior and had tried to include him in family functions to make him come out of his shell; however, she said that it seemed like he sunk further into wanting to be alone. The Veteran could be insulting and appeared to be angry for no reason. In a July 2017 statement, the Veteran’s wife, N.L., said that she had gone to psychologists with the Veteran and saw that he did not disclose some things to them because he feared that would make him “look dumb.” The Veteran got upset easily if she said something with which he did not agree. N.L. said that their disagreements were “so out of control” at times that he would threaten her; she feared his attitude so she would back off from the argument. She said that the Veteran claimed to have bad nights almost every night, and she noticed that he made “all kind of noises and [was] very restless.” At times, she jumped out of bed and would turn on the light to wake up the Veteran. She said she feared that he would hit her when he is having bad dreams. N.L. said that the Veteran was getting forgetful; he forgot to take his medication or forgot what he was doing. In a July 2017 statement, the Veteran said that he forgot things a lot and angered easily. He said he got disappointed in himself that he would get depressed and did not want to speak to anyone. In an October 2017 VA treatment record, the Veteran said that he did not understand why he was discharged by the mental health clinic. He denied suicidal or homicidal thoughts, but reported ongoing depressed mood. In a September 2019 VA treatment record, the treating physician noted that the Veteran had a history of depression with suicidal ideation. The Veteran currently denied suicidal ideation. He had chronic depression and reported some memory loss. From January 3, 2020 In a January 2020 VA examination, the examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted that the Veteran also had a diagnosis of major neurocognitive disorder (dementia) moderate (by medical history), but found that it was not possible to differentiate which impairment was caused by each mental disorder. The examiner said that both caused significant problems and there was a significant interaction between the two disorders so that the provider could not distinguish the difference of impact on functioning without resorting to mere speculation. The Veteran was married for 55 years and they had adopted children. Due to his depression he got into “ugly nasty moods” with her and angered easily. The examiner noted the following diagnoses: depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or a work like setting; inability to establish and maintain effective relationships; suicidal ideation; and impaired impulse control, such as unprovoked irritability with periods of violence. The Veteran was noted to be casually and appropriately dressed with normal grooming and hygiene. Physical movement exhibited a normal level of activity. Speech was clear, coherent, goal-directed, and normal in rate and volume. Eye contact was appropriate, and the Veteran was alert and a reliable historian. He was oriented to person, place, and time. The Veteran’s ability to abstract, and his insight and judgment were deemed to be intact, but fair at best. Intelligence was average to low average. Short-term memory, concentration, and some forms of long-term memory were problematic. There were no psychotic symptoms, or delusion or hallucinations noted or reported. The examiner noted the Veteran’s mood to be depressed but friendly, with mood-congruent affect. The Veteran denied any history of homicidal ideation or attempts. He had thoughts of being dead and thought “what are you doing here? You’re not going to get any better.” Once the Veteran grabbed the steering wheel when he was in an argument with his wife and thought why not end it all but did not go through with it. The Veteran got lost heading home sometimes and was forgetful, but his wife helped him. The Veteran got 5 hours of sleep per night, but often knocked his CPAP off the nightstand. He had nightmares about killing even though he had never experienced that. The Veteran stayed isolated. The examiner noted severe symptoms of depression. In a January 2020 VA treatment record, it was noted that the Veteran struggled with memory, but was able to go to familiar places like the VA. The Veteran had low mood but was not hopeless or suicidal. He was tolerating his medications and was compliant. He slept 4 to 5 hours per day. Upon examination, the Veteran was alert, well groomed, and appropriately dressed. The Veteran’s attitude was cooperative and speech was fluent with normal rate and volume. His mood was dysphoric and affect was restricted. There were no auditory hallucinations or delusions. Thought process was logical. Immediate memory and recent memory were poor, while remote memory was intact. Attention and concentration were intact. The Veteran was oriented and insight and judgment were good. In an April 2020 VA treatment record, the Veteran said he had been doing well and was sleeping better. He was in a good mood and compliant with medications. The Veteran was cooperative and speech was fluent with normal rate and volume. Mood was euthymic. There were no auditory hallucinations or delusions, and the Veteran denied suicidal or homicidal ideation. Thought process was logical and memory was intact. Attention and concentration were intact. The Veteran was oriented. Intellect was average and insight and judgment were good. Overall, and giving the Veteran the benefit of the doubt, the Board finds that the Veteran’s MDD warrants a 70 percent disability rating prior to January 3, 2020. Initially, the Board notes that the records prior to January 3, 2020, show times where the Veteran denied suicidal ideation. However, there is also evidence of suicidal thoughts, admitted by the Veteran, and evidence from the Veteran and his wife that he had trouble communicating his symptoms to his treatment providers. Specifically, in a September 2014 VA treatment record, the treating physician looked to a prior July 2014 note where the Veteran thought of hurting himself on a trip and had suicidal thoughts on and off. Therefore, the Board finds that one of the Veteran’s MDD symptoms included suicidal ideation. Additionally, prior to January 3, 2020, there is consistent evidence of memory issues, impaired impulse control, where the Veteran angered easily and was irritable, difficulty maintaining work because he did not like being told what to do, sleep problems, and socially isolating. Specifically, in a February 2014 VA treatment record, the Veteran reported increased anger and irritability. In a September 2014 VA treatment record, the Veteran said he only slept 4 hours and the treating physician had to have his medication increased for other MDD symptoms. In a June 2016 VA treatment record, the Veteran only slept 5 hours per night, affect was restricted, recent memory was impaired, and additional medication was added to handle the Veteran’s symptoms. Finally, in several statements made by the Veteran’s siblings and wife, the Veteran was noted to be isolated and angered easily. Regarding, the Veteran’s memory issues, the Board acknowledges that later in the January 2020 VA examination, it was noted that the Veteran had major neurocognitive disorder (dementia); however, the Board notes that the examiner found that it was not possible to differentiate which impairment was caused by each mental disorder. Therefore, the Board will assign some memory loss issues to his MDD based on the examiner’s response. Thus, a 70 percent rating, but no higher, is warranted for the Veteran’s MDD prior to January 3, 2020. Despite this grant of an increased rating, the Board finds that prior to January 3, 2020, and thereafter, there is no evidence of total occupational and social impairment. There is no evidence anywhere in the claims file to suggest that the Veteran has displayed gross impairment in thought process or communication, nor has the record shown that he is a persistent danger of hurting himself or others. The symptoms the Veteran experiences and displays do not rise to the level of causing total social and occupational impairment. A review of the record as a whole shows that VA examiners and clinicians have consistently observed the Veteran to have good judgment and insight and have not found the Veteran to have poor grooming or hygiene. Further, the Veteran has not displayed disorientation to time or place, or memory loss for names of close relatives, his prior occupations, or his own name or symptoms that resemble this level of severity. The Veteran was married for over 50 years, was noted to have good hygiene and grooming, had logical thought process, speech was normal, he was oriented to person, place, and time, and was tolerating his medication well. Therefore, a 100 percent disability rating is not warranted prior to January 3, 2020, or thereafter for his MDD. Accordingly, prior to January 3, 2020, a 70 percent disability rating is warranted for MDD. From January 3, 2020, a rating in excess of 70 percent for MDD is not warranted. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (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). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 3, 2020, is remanded. Based on the above grant of a 70 percent disability rating prior to January 3, 2020, for the Veteran’s MDD, the Board directs the RO to implement this grant, and then readjudicate the issue of TDIU prior to January 3, 2020. The matters are REMANDED for the following actions: 1. Obtain any outstanding VA or private treatment records. Request that the Veteran assist with locating these records, if possible. Associate these records with the claims file. 2. Then, after implementing the grant of the 70 percent disability rating prior to January 3, 2020, for the Veteran’s MDD, readjudicate the claim of TDIU. If the benefit sought remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before returning the matter to the Board for further appellate review. MICHAEL MARTIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Saudiee Brown 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.