Citation Nr: A21016299 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 210618-166964 DATE: October 4, 2021 ORDER Entitlement to an evaluation of 70 percent for posttraumatic stress disorder (PTSD) with major depressive disorder is granted. Entitlement to a separate compensable rating for major depressive disorder is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's psychiatric symptoms have most closely approximated occupational and social impairment with deficiencies in most areas, which warrants a 70 percent disability rating. 2. Separate ratings for the Veteran's major depressive disorder and PTSD would amount to pyramiding. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation of 70 percent for PTSD with major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130 Diagnostic Code (DC) 9411. 2. The criteria for a separate compensable rating for major depressive disorder have not been met. 38 U.S.C. §§1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 4.14. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the US Army from February 1966 to February 1968, including a 12-month deployment to Korea. This issue comes before the Board of Veterans' Appeals (Board) from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision on appeal was issued in April 2021 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the June 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. 1. Entitlement to an evaluation in excess of 30 percent for PTSD The Veteran seeks a rating in excess of 30 percent for his service-connected PTSD. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, assignment of staged ratings would be permissible. See Fenderson v. West, 12 Vet. App. 119 (1999). Pursuant to 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders ("General Formula"). Under the 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, 114-18 (Fed. Cir. 2013). Importantly, the Board notes that psychiatric disabilities, to include specifically both PTSD and major depressive disorder, are rated holistically under the General Formula, which evaluates all psychiatric symptoms as follows: A 100 percent rating requires 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. 38 C.F.R. § 4.130. A 70 percent rating requires 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); inability to establish and maintain effective relationships. Id. A 50 percent rating requires 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. Id. A 30 percent rating requires 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). Id. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove references to the DSM-IV and replace them with references to the updated DSM, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094; 38 C.F.R. § 4.125. The provisions of the final rule apply to all applications for benefits that are received by VA or that were pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014. VA has clarified that the provisions of the rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014, even if such claims are subsequently remanded to the AOJ. The VA Form 10182 brought the claim to the Board in June 2021. Therefore, the new version of the Schedule for Rating Disabilities is applicable. In the March 2021 VA examination, the examiner specifically references the diagnostic criteria from the DSM-5; therefore, the VA is in full compliance. Evaluation under 38 C.F.R. § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Federal Circuit explained that the frequency, severity, and duration of the symptoms also played an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating but are not meant to be exhaustive. The Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria, or symptoms of similar severity, frequency, and duration, 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. Id. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Board shall consider all information and lay and medical evidence of record in a case before it, with respect to benefits under laws administered by the Secretary. The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). The Board assesses both medical and lay evidence. In addressing lay evidence and determining its probative value, if any, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno v. Brown, 6 Vet. App. 465 (1994). In determining whether an increased disability rating is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran underwent a private evaluation at Therapeutic Health Endeavors by a private licensed clinical social worker in September 2020. The Veteran reported that he felt unsafe during his time in Korea due to the lack of security, civilians in and around the camp that frequently stole items, and the threat of being killed by North Korean insurgents near the demilitarized zone (DMZ). The Veteran also reported that he became so depressed, he finally sought treatment at the US Army Hospital in Korea where he reports he stayed for two weeks in the psych ward. The Veteran was eventually sent home to finish his active duty service. As a training officer back in the United States, the Veteran reported that he would become inpatient and easily agitated with junior officers. He also reported that he continued to struggle with depression and was still drinking heavily, a continuation of his habit begun in Korea to "escape" his feelings. The private evaluation noted that the Veteran began attending AA meetings in 1988 but was still dealing with serious depressive symptoms by 1989. The Veteran also affirms some feelings of suicidal ideation recently, stating he feels an urge to see what would happen if he wrecked his car. The Veteran has also recently gained some weight and is still not sleeping well, stating he has not had good sleep since his service. The private clinical studies find symptoms to include suicidal ideation, depression, helplessness, hopelessness, self-doubt, anxiety, anger, social avoidance, and a dislike for people or being in crowds. The Veteran's private evaluation also evaluated for his emotional dysfunction. Again, the Veteran was found to have suicidal ideation. The examiner also noted a significant lack of positive emotional experiences, marked lack of interest, pessimistic attitude, lack of energy, problems with anger and irritability, a low tolerance for frustration, reported feelings of anxiousness, intrusive ideation, nightmares, feeling hopeless, overwhelmed, and a lack of motivation. The clinical tests revealed the Veteran as having severe depression with suicidal ideation, moderate anxiety, and PTSD. Specifically, the Veteran reported that he did not sleep well, was having intrusive thoughts, was on edge, and was having nightmares. The Veteran also reported that he checked himself into the US Army Hospital in Korea while on active duty because he was having thoughts of killing himself. Post-military the Veteran has continued to experience PTSD, intrusive thoughts, and continued to drink excessively to deal with his trauma. He reported waking up from nightmares sweating and being in intense and prolonged distress after waking. The private examiner stated that the overall symptom presentation was consistent with PTSD and major depressive disorder. The examiner stated that consistent with the DSM-5, the Veteran was diagnosed with PTSD and moderate, recurrent major depressive disorder. In February 2021 the Veteran submitted a lay statement into the record. He claimed that while in Korea, he felt repeatedly battered by one traumatic incident after another. He claims that memories from his time in service still haunt him at night and he has not had a restful night of sleep in decades. He also states that he becomes paralyzed with fear as a result of everyday occurrences. He also reported struggling with poor self-esteem, depression, agitation, an inability to concentrate, and a desire to distance from his family and friends which has caused him to lose friends and has strained his marriage. In March 2021 the Veteran was afforded a VA examination. The examiner noted his PTSD diagnosis based on the DSM-5 criteria. The examiner found the Veteran to exhibit 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 with symptoms being controlled by medication. The examiner listed the symptoms of the PTSD to be depression, anxiety, suspiciousness, chronic sleep impairment, and difficulty adapting to stressful circumstances. The April 2021 rating decision granted a disability rating of 30 percent solely due to the symptoms listed in the VA examination. The VA claimed that the Veteran's PTSD most closely approximated those symptoms listed under the criteria for a 30 percent disability rating. 38 C.F.R. § 4.130. In July 2021, the Veteran's wife offered a lay statement into the record. She stated that she began to feel the Veteran's anxiety, fear, and depression through the letters he wrote her while he was stationed in Korea. She stated that after he returned home from Korea, he exhibited depressive behavior, drank excessively, and had frequent angry outbursts and frustration. The Veteran finally went to AA and stopped drinking and was able to admit that his experience in Korea was the root cause of his drinking. The Veteran's wife also stated that he frequently withdraws from family and friends, does not sleep well, and becomes increasingly negative. She also noted that when he talks about his experiences from his time in service it can bring him to tears. The Veteran's brother also offered a lay statement in August 2021. He stated that the man who came home from Korea is not the same one who left for Korea. He noted that the Veteran has a blankness and lack of mental presence now. The Veteran's brother also reported that the Veteran separates himself from his family and guests in social settings and it is now a frequent occurrence. The Veteran's brother also claimed that the Veteran now is emotionally unavailable, lacking in empathy, becomes easily frustrated, and had alcohol dependency that was destroying his life, Finally, his brother stated that the Veteran is known to experience quiet and tearful moments detached from others. The Veteran submitted a private psychological evaluation in September 2021 by the same treatment provider who conducted the September 2020 evaluation. At that time, he was again diagnosed with PTSD and major depressive disorder. The examiner again noted symptoms of flattened affect, panic attacks weekly or less often, disturbance of mood, sadness, irritability, hypervigilance, flashbacks, nightmares, and a feeling that life is not worth living. The Veteran reported avoiding crowds, low motivation to interact with others, and suicidal ideations. The evaluator found the Veteran to demonstrate total occupational and social impairment. The evaluator noted that the Veteran reported having lost "several jobs over the years" due to these symptoms but stated that he had retired from self-employment in 2010. She stated that the Veteran's marriage and relationships with his children had "suffered" over the years due to his PTSD but did not offer any discussion of that finding. After a full review of the Veteran's medical records and lay testimony of the record, the Board determines, first, that the Veteran's symptoms of PTSD and major depressive disorder are not differentiable and thus must be rated holistically, as provided by the General Formula and Mittleider v. West, 11 Vet. App. 181, 182 (1998). To this end, the Board has recharacterized the Veteran's service-connected disability as PTSD with major depressive disorder. This is discussed in further detail below. The Board further concludes that the Veteran is entitled to a rating of 70 percent for his PTSD with major depressive disorder, as the evidence establishes that the Veteran's symptoms, when considered together, more nearly approximate symptoms which warrant a 70 percent rating under Diagnostic Code 9411. The Veteran is specifically reported as having suicidal ideation in the private evaluation and during his time in service. The Board further notes that the Veteran's history of suicidal ideations is a significant factor in granting a higher rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (holding that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas). The Veteran consistently reported symptoms that could lead to occupational and social impairment with deficiencies in most areas, including frequent agitation and anger, excessive alcohol dependence, chronic sleep impairment, and difficulty in adapting to stressful circumstances. Thus, entitlement to a 70 percent rating for the Veteran's PTSD with major depressive disorder is granted. Although the Veteran has exhibited symptoms of a 70 percent rating, the Board finds that the Veteran does not show symptoms sufficient to receive a 100 percent rating. See Mauherhan v. Principi, 16 Vet. App. 436 (2002) (stating that 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). Although the Veteran did report suicidal ideation in the record, he does not show any persistent or actual danger of hurting himself or others. In Bankhead, the Court held that there is a differentiation between thoughts of suicidal ideation and actual risk of self-harm which is referenced in the 100 percent rating criteria. Bankhead, 29 Vet. App. at 11. The Veteran had been working on improving his relationship with his wife; this clearly establishes that he is not experiencing total social impairment, as he continues to maintain relationships with his wife and brother, as well as his children. Throughout the record, VA medical professionals and the Veteran's private examiner do not find the Veteran to experience symptoms of such a severity as a lack of personal hygiene, hallucination or delusions, or memory loss so severe that he forgets his own name or the names of close relatives. The Board finds that the evidence throughout the entire period on appeal does not manifest as total occupational and social impairment, due to such symptoms as (for example only): 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. The Veteran's own reports at various evaluations regarding how his PTSD with major depressive disorder impacts him, overall, would provide additional evidence against this claim, clearly indicating the level of symptomatology cited within the 100 percent rating have not been met in this case. In summary, the Board finds that the Veteran's PTSD with major depressive disorder more nearly approximates the rating criteria for a 70 percent rating, but no higher, throughout the period on appeal. To this extent, the claim is granted. 2. Entitlement to service connection for major depressive disorder The Veteran is reminded that service connection has been established for his PTSD, which is herein recharacterized as PTSD with major depressive disorder. The Board further notes that the rating assigned for this disability contemplates all of his current psychiatric symptomatology, as discussed in detail above. Importantly, as explained above, the grant of a separate rating for major depressive disorder by itself would not affect the Veteran's level of disability compensation as he is already being compensated for all of the psychiatric symptoms he experiences, as set forth in the VA and private evaluations and as described by the Veteran and his family members. An award of a separate compensable ratings for both his major depressive disorder and PTSD would thus result in impermissible pyramiding under 38 C.F.R. § 4.14. It is possible for an appellant to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Thus, while the Veteran can be separately service-connected for different acquired psychiatric disorders, the overlapping psychiatric symptoms for each separate disability cannot be rated more than once. In the Veteran's case, all his psychiatric symptoms have been already considered in the initial 70 percent rating assigned herein for his PTSD with major depressive disorder. Thus, separate ratings are not warranted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.L. Aumiller, 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.