Citation Nr: 21062570 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 15-02 531 DATE: October 8, 2021 ORDER For the entire initial rating period on appeal from April 16, 2008, a higher disability rating of 100 percent for a depressive disorder is granted. FINDING OF FACT For the entire initial rating period on appeal from April 16, 2008, the symptomatology and functional impairment of the service-connected depressive disorder more nearly approximated total occupational and social impairment. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the entire initial rating period on appeal from April 16, 2008, the criteria for a higher disability rating of 100 percent for a depressive disorder have been met. 38 C.F.R. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant, had active duty service from October 1972 to July 1975. The instant matter is on appeal from a June 2014 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The matter came before the Board of Veterans' Appeals (Board) previously when the Board, in pertinent part, granted a higher initial disability rating of 70 percent for the service-connected depressive disorder for the entire initial rating period on appeal from April 16, 2008. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court), which issued a February 2020 Joint Motion for Partial Remand (JMPR). In the JMPR, the parties agreed that there were two pieces of evidence that the Board did not discuss in its decision that indicated a potential risk of danger of the Veteran hurting himself or others during the rating period. The JMPR remanded for consideration of the specific evidence. In an August 2020 remand, the Board noted that there was a question as to whether the evidence supported that the Veteran was a persistent danger of hurting himself or others and remanded for an independent opinion on that question and for the RO to attempt to obtain incident reports related to any "violent eruptions" that had happened between the Veteran and his neighbors. An additional remand was required in March 2021 because the RO had requested private medical records from the local sheriff's office, rather than incident reports. The Board remanded for a request for the incident reports and for an updated independent medical opinion. As the terms of the March 2021 remand have been substantially complied with, the Board finds that the matter is ripe for adjudication. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran testified at an October 2018 Board videoconference hearing before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. Following the issuance of an October 2020 Supplemental Statement of the Case (SSOC), in a November 2020 VA Form 9, the Veteran appeared to request a new post-remand hearing before the Board. Per a subsequent December 2020 letter from the Veteran's representative, the Veteran withdrew the second Board hearing request. In February 2021, after certification of the instant matter to the Board, the Veteran's representative submitted a letter seeking to withdraw from representation. Subsequently, in May 2021 correspondence, the representative again asserted that he was no longer the representative and that representation had been terminated and withdrawn. For this reason, the Veteran is now unrepresented in this appeal. 38 C.F.R. § 20.6. Depressive Disorder Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. § Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Secretary of VA, acting within the authority to adopt and apply a schedule of ratings, chose to create one general rating formula for mental disorders. 38 U.S.C. §§ 501, 1155; 38 C.F.R. § 4.130. By establishing one general formula to be used in rating more than 30 psychiatric disorders, there can be no doubt that the Secretary of VA anticipated that any list of symptoms justifying a particular rating would in many situations be either under- or over-inclusive. The Secretary's use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each veteran and disorder, and the effect of those symptoms on the claimant's social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (1992). 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. Instead, the rating specialist is to consider all symptoms of a claimant's condition that affect the level of occupational and social impairment. See 38 C.F.R. § 4.126. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate, equivalent rating will be assigned. The schedular rating criteria rate by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. See Mauerhan, 16 Vet. App. at 443. The Federal Circuit has embraced the Mauerhan interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "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." See id. It was further noted that "§ 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." See id. Under Diagnostic Code 9434, a 70 percent rating will be assigned 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), and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent schedular rating contemplates 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. Id. From April 16, 2008, a 100 Percent Rating for a Depressive Disorder is Granted. After a review of all the evidence, lay and medical, the Board finds that, for the rating period on appeal from April 16, 2008, the evidence is at least in equipoise as to whether the severity, frequency, and duration of the psychiatric symptoms caused total occupational and social impairment so as to warrant a 100 percent disability rating under Diagnostic Code 9434. During the entire initial rating period, the depressive disorder has caused total occupational and social impairment due to such symptoms as anxiety, depression, outbursts of anger, memory loss, flattened affect, disturbances of motivation and mood, impaired impulse control (such as unprovoked irritability with periods of violence), suicidal ideation, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, near continuous panic or depression, and a persistent danger of hurting self or others. See, e.g., April 2014 VA Examination; February 2019 VA Examination; May 2021 VA Examination. The evidence is at least in equipoise as to whether the Veteran has been a persistent danger to himself or others. This evidence includes February 2010 treatment records reflecting the Veteran's inpatient hospitalization for a suicide attempt with threats of homicidal ideation toward his son. The evidence is slightly contradictory as to whether the Veteran actually had homicidal ideation with regard to his son, as during a discussion with the inpatient suicide prevention coordinator the Veteran asserted that he had a nightmare the night before his admission that "felt so real that I thought I shot my son" and adamantly denied that he actually intended to kill his son. See February 2010 VA Treatment Record; September 2020 VA Opinion (stating that it was unclear as to whether or not the Veteran experienced homicidal ideation because of the statements to the suicide prevention coordinator). However, the day of the Veteran's admission, he spoke with a different suicide prevention coordinator and stated that he wanted to "blow his brains out" and that he "almost shot his son" last night. The Veteran stated, "I can't be around people anymore, I'm dangerous, I should die." See id. A rescue attempt had to be initiated by the police. This evidence supports a degree of symptomatology indicating a persistent danger to self or others, which was also the conclusion that a psychologist reached in a May 2021 VA Opinion. In the May 2021 VA Opinion, the VA examiner cited psychiatric symptoms that resulted in deficiencies in most areas that included depression, anxiety, anger outburst, suicidal ideation, and impaired impulse control. The VA examiner cited to the February 2010 records indicating inpatient treatment for a suicide attempt and to the October 2018 Board hearing testimony that he had been experiencing suicidal ideation, anger, and isolation since 2008. The totality of the evidence, lay and medical, is at least in equipoise as to whether there is total occupational and social impairment. Regarding social impairment, the Veteran testified at the October 2018 Board hearing that he really only has a relationship with his wife. VA treatment records reflect that the Veteran's wife has separated from him at least three separate times due to psychological symptoms and an inability or unwillingness to stay with treatment. See December 2014 VA Treatment Record (explaining that the Veteran was separated from his wife for a third time due to antagonistic interpersonal behavior that prevented her from having friends or socializing). The Veteran further testified at the October 2018 Board hearing that excessive bouts of anger and violent eruptions (like or similar to impaired impulse control) caused issues with neighbors. Between 2015 and 2020, there were two incidents where the police were called by a neighbor to resolve an incident with the Veteran. See August 2016 Incident Report; January 2015 Incident Report. The Veteran also testified to an incidence of road rage where he got out of his vehicle, approached another, and smashed the mirror. He testified that he did not have friends anymore because he made a fool out of himself with his actions and that family members other than his mother have given up on him. Regarding occupational impairment, the Veteran has not worked since 2002. Although he stopped working for physical health reasons, he testified at the October 2018 hearing that his psychiatric symptoms also caused problems with employment. In the May 2021 VA examination, the VA examiner noted that the Veteran was placed on night shift by his union while he was working so that he could work separately from people. In a February 2019 VA examination, the VA examiner explained that the Veteran's depressive and anxiety symptoms would significantly limit his cognitive, emotional, behavioral, and social functioning. His severe depressive symptoms would likely impair his motivation and his psychomotor retardation would reduce his work productivity. His anxiety symptoms would likely reduce his concentration issues and task completion. His interpersonal issues would likely create conflict with coworkers or customers. His reduced stress tolerance would also likely inhibit his ability to cope with the demands of an occupational environment and responsibilities. In April 2016, the Veteran's then-psychiatrist stated that she did not believe the Veteran was capable of gainful employment of any type due to his psychiatric condition. She noted symptoms including persistent irrational fears, speech intermittently illogical, obscure, or irrelevant, deficiencies in work or school, depression affecting the ability to function independently, appropriately, and effectively, deficiencies in mood, difficulty in adapting to stressful circumstances, intrusive recollections of a traumatic experience, unprovoked hostility and irritability, and deficiencies in judgment. All aspects of work functioning were noted to be markedly limited based on psychiatric functioning. Independent psychologist Dr. B reached the same conclusion in a March 2016 report, although with an emphasis on different symptomatology. (Continued on the next page) Given the totality of the evidence, lay and medical, the Board finds that the evidence is at least in equipoise as to whether the Veteran has been totally occupationally and socially impaired due to his service-connected psychiatric disability. Resolving reasonable doubt in the Veteran's favor, and a 100 percent initial disability rating for the entire initial rating period on appeal from April 16, 2008 is warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Smith, 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.