Citation Nr: 21064682 Decision Date: 10/21/21 Archive Date: 10/21/21 DOCKET NO. 14-29 210A DATE: October 21, 2021 ORDER Entitlement to an initial disability rating of 100 percent for major depressive disorder, previously rated as mood disorder, unspecified depressive disorder is granted from September 15, 2009. FINDING OF FACT The most probative evidence of record is at least in equipoise that the Veteran's major depressive disorder has been manifested by symptoms comparable to total occupational and social impairment throughout the appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial 100 percent rating for major depressive disorder, previously rated as mood disorder and unspecified depressive disorder, are met from September 15, 2009. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from July 1979 to August 1982. This case is before the Board of Veterans' Appeals (Board) from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at a September 2018 hearing. The Board issued a decision on these issues in May 2019. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board's decision that denying an initial disability rating in excess of 30 percent for an acquired psychiatric disorder from September 15, 2009 to January 22, 2014, in excess of 50 percent from January 22, 2014, to January 12, 2018, and in excess of 70 percent from January 12, 2018. These matters are again before the Board for review consistent with the JMPR, specifically to address buddy statements of record, the Veteran's arrest history, and various symptoms related to his psychiatric disability. Entitlement to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder from September 15, 2009 to January 22, 2014; in excess of 50 percent from January 22, 2014 to January 12, 2018; and in excess of 70 percent after January 12, 2018. The Veteran was initially granted service connection for mood disorder with a disability rating of 30 percent. His disability rating was modified to include depressive disorder and increased to 50 percent, effective January 22, 2014 by an August 2014 rating decision. By a March 2018 rating decision, his disability was recharacterized as major depressive disorder and increased to 70 percent, effective January 12, 2018. The increased ratings represent a partial grant of the benefit sought on appeal. The Veteran has indicated a desire to continue his appeal for higher percentage evaluation for major depressive disorder (04/12/2018 VA 21-4138 Statement In Support of Claim). Accordingly, the issue remaining on appeal is whether the Veteran is entitled to an initial disability rating in excess of 30 percent for an acquired psychiatric disorder from September 15, 2009 to January 22, 2014; in excess of 50 percent from January 22, 2014 to January 12, 2018; and in excess of 70 percent after January 12, 2018. The Veteran's major depressive disorder, previously rated as mood disorder, unspecified depressive disorder is rated pursuant to 38 C.F.R. § 4.130, DC 9434, which follows the General Rating Formula for Mental Disorders. Under the General Formula for Mental Disorders (General Formula), 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 v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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 maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 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, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Upon review of the totality of the record, the Board finds that the Veteran's symptoms warrant a 100 percent rating for the Veteran's acquired psychiatric disability for the entire appeal period, effective September 15, 2009. This is based on symptoms such as passive suicidal ideation; impaired impulse control, irritability with periods of violence, difficulty in adapting to stressful circumstances; gross impairment in thought processes or communication and grossly inappropriate behavior. See 09/03/2021 Medical Treatment Record - Non-Government Facility. Of record are a number of VA examinations. The examiners described varying levels of functional impairment ranging from deficiencies in areas such as judgment, thinking, family relations, work, mood or school to occupational and social impairment with reduced reliability and productivity. (01/12/2018 C&P Exam; 01/22/2014 VA Examination; 05/25/2010 VA Examination, pg. 7). Of record is a June 2021 private medical opinion (09/03/2021 Medical Treatment Record - Non-Government Facility). After a thorough review of the Veteran's service, medical and social history, in conjunction with references to medical research and an in-person interview, the private physician found the Veteran's service connected disability has greatly affected the Veteran's life including his social functioning familial functioning, and as of 1994 his capacity to maintain employment. The physician described the Veteran as completely psychiatrically disabled and unemployable since 1994 (09/03/2021 Medical Treatment Record - Non-Government Facility, pg. 1) The Veteran's legal history includes 21 arrests for socially disruptive and violent offenses since his release from active service (01/30/2018 Prison/Convict Information). Buddy statements of record include statements from the Veteran's mother, a neighbor and friend. Collectively, these statements confirm the Veteran's verbally abusive behavior, loud and disruptive behavior at all hours of the night (three documents identified as 09/11/2013 Buddy/Lay Statement). The Veteran has described significant periods of unemployment and underemployment since the 1990s. His social security work history suggests, since release from active service in 1982, his earnings have been neither significant nor consistent (09/03/2021 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability; 09/03/2021 SSA/SSI Letter). The Veteran was terminated from employment in the 2006 timeframe due to excessive absences and tardiness (07/10/2018 VA 21-4192 Request for Employment Information in Connection with Claim for Disability). Although the record references the Veteran's relationships with his mother and a long-term girlfriend, the record suggests those relationships are highly volatile. The Veteran has a son with whom he has no relationship (09/18/2018 Hearing Transcript, pg. 5; 01/22/2014 VA Examination, pg. 3). The Board has considered the references to the Veteran's alcohol and drug use in the record. In that regard, the June 2021 opinion includes a finding that the Veteran's depression and anxiety preceded his escalated alcohol use. The physician supported this opinion with references to medical literature (09/03/2021 Medical Treatment Record - Non-Government Facility, pg. 11). The June 2021 private opinion explained the Veteran's service-connected illness was left untreated for decades resulting in unfettered progression and his being completely disabled by 1994, as he could no longer manage interpersonal relationships required in occupational and social settings. In weighing the evidence of record, the Board finds the June 2021 private opinion to be the most probative evidence of record. It is grounded in an accurate and thorough review of the Veteran's service, medical, social, and occupational history. In sum, the Board finds the most probative evidence of record suggests the severity of the Veteran's symptoms resulted in total occupational and social impairment for the entirety of the rating period warranting the maximum 100 percent rating for the entirety of the appeal period. Entitlement to an initial disability rating of 100 percent for major depressive disorder, previously rated as mood disorder, unspecified depressive disorder is granted from September 15, 2009. (Continued on the next page) As a separate matter, the June 2021 private medical opinion included a well-supported finding that the Veteran has been incapable of maintaining gainful employment as a direct result of his major depressive disorder alone since he was last employed full time in 1994 (09/03/2021Medical Treatment Record - Non-Government Facility). While the issue of total disability due to individual unemployability is part and parcel to a claim for increased rating, since the Board has found the Veteran's disability warrants a 100 percent disability rating for the entirety of the rating period, the issue of TDIU attached to the same disability has been rendered moot. Rice v. Shinseki, 22 Vet. App. 447 (2009). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. A. Myers 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.