Citation Nr: 21067362 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 17-44 944 DATE: November 4, 2021 ORDER For the period since June 20, 2014, entitlement to a rating in excess of 70 percent for major depressive disorder is denied. FINDING OF FACT For the period since June 20, 2014, the severity, frequency, and duration of the Veteran's symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 2008 to November 2012. The matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veteran's Affairs (VA) Regional Office (RO). The June 2015 rating decision denied entitlement to a rating in excess of 70 percent for the Veteran's Major Depressive Disorder effective June 20, 2014. The Veteran's original claim for entitlement to service connection for depression was granted with a noncompensable rating effective November 13, 2012 in a March 2013 rating decision by the RO. In August 2013, the Veteran submitted a separate claim for anxiety. In an April 2014 rating decision, the Veteran was granted a 30 percent disability rating for depression effective August 22, 2012. In a June 20, 2014 statement in support of his claim, the Veteran filed an informal claim requesting an increased rating for his service-connected depression. In October 2014, the Veteran was granted a 70 percent rating for his service-connected depression effective June 20, 2014. New and material evidence was added to the file in April and June 2015, and the RO issued the June 2015 rating decision considering that evidence and denying entitlement to a rating in excess of 70 percent. The Veteran timely appealed this decision, resulting in this Board decision. The record does not reflect that the Veteran was seeking a higher disability rating for depression prior to the given effective dates but rather reported an increase in symptoms throughout the appeal period. As a result, the only issue currently before the Board is entitlement to a rating in excess of 70 percent since June 20, 2014. In April 2020 the Board granted service connection for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and remanded the issue of entitlement to a disability rating in excess of 70 percent for the Veteran's service-connected Major Depressive Disorder (depression). To the extent that the Veteran is seeking entitlement to a TDIU as part and parcel of the increased rating for depression claim, the Board granted this benefit in its April 2020 decision. The Veteran has requested a Higher-Level Review of the effective date assigned for TDIU and that review is being processed by the Agency of Original Jurisdiction. As a result, the only matter currently before the Board is entitlement to a disability rating in excess of 70 percent since June 20, 2014 for the Veteran's service-connected depression. Increased ratings 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. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Major Depressive Disorder is evaluated pursuant to the General Rating Formula for Mental Disorders. A 70 percent rating is warranted when there is 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 the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent evaluation is warranted if 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; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit (Federal Circuit) recently explained, an 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 symptoms listed under the referenced diagnostic code are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). 1. For the period since June 20, 2014, entitlement to a rating in excess of 70 percent for major depressive disorder. The Veteran asserts the current severity of his depression warrants a 100 percent disability rating. The Veteran underwent a VA examination in March 2014 in which the examiner concluded the Veteran had "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 medication." The Veteran reported experiencing flash backs, nightmares, avoidance, hyper-startled responses, and emotional numbness. He stated he self isolates from friends and family at times but also reports a good relationship with his brother, stepbrothers, and father. He reported irritability, anger, panic attacks, a feeling of impending doom, and an inability to feel pleasure. He dislikes loud noises and experiences panic attacks once or less per week. He further reported anxiety and chronic sleep impairment. The Veteran was not currently working at that time but did report being enrolled in school with a "C" average. The Veteran denied suicidal ideations at this time. The Veteran underwent an additional VA examination in September 2014. Here, the examiner concluded the Veteran had "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood." The Veteran reported depression, suicidal ideations "in the recent past", an inability to feel pleasure, low energy, low motivation, isolation, anxiety, agitation, irritability, restlessness, concentration issues, panic, worry, fear, and a hyper startled response. The examiner also noted impaired impulse control and neglect of personal hygiene. The Veteran lived alone and did not report being in a committed relationship at that time. He did report being "fairly close" to his mother who often helps him financially. He also kept in contact with his brother and his father. He further reports that he "has some friends from the military and some old friends from Missouri" that he tries to keep in contact with. The Veteran again reported not working and while enrolled full time in school he was not passing some of his classes. The Veteran's VA outpatient records from October 2013 to November 2014 show the Veteran reported depression, sleep issues, low self-esteem, issues concentrating, anxiety about leaving his home, anger issues, and panic attacks. In October 2013, the Veteran denied any past history of self-harm, impatient psychiatric therapy, and the provider stated the Veteran "remains functional at school and home currently." The Veteran reported panic attacks occurring less than once per week. The Veteran denied suicidal ideations consistently throughout this period except for one instance in August 2014 where he stated he was having suicidal ideations. However, he again denied suicidal ideations in September 2014. In September 2014, the Veteran also denied any past "suicidal attempts or gestures or any psychiatric hospitalizations." The Veteran had another VA examination in June 2015. The examiner stated 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 Veteran reported keeping in touch with his family, that he was not currently working, and was dismissed from school due to failing classes. The Veteran denied recent physiatric hospitalizations and a history of recent suicide attempts. The Veteran reported depressed mood, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of mood and motivation, difficulty establishing and maintaining effective work and social relationships, and difficulty adapting to stress including at work. The examiner concluded that regarding routine activities of daily living, "he is capable of utilizing public transportation, he is capable of shopping, his is capable of self-care, [and] he has [a] few recreational activities." However, regarding occupational functioning, the Veteran had not worked nor applied for a job in years and the examiner noted the Veteran was prone to irritability which "could be a problem in the workplace." The Veteran reported his last job was overwhelming from a psychiatric viewpoint and feels "part of his work difficulties are [sic] related to physical limitations." The Veteran's VA outpatient records from March 2017 and August 2018 show the Veteran denied any suicidal ideations. In March 2017 the Veteran reported feeling down, numb, experiencing nightmares, and avoids thinking about service. However, his records from September 2015 show that the previous evening, the Veteran was experiencing suicidal ideations. He stated he wanted to "put a gun to his head and make everything go away." However, at the time of this note, which was taken the following day, the Veteran denied past suicidal attempts, denied owning a gun, and denied any current suicidal ideations. In December 2018 the Veteran reported anger issues resulting in physical altercations with his girlfriend, sleep issues, and anxiety. He denied any suicidal ideations at that time. He again denied any suicidal ideations in February 2020 and June 2020. The Veteran submitted a March 2016 notice of disagreement in which he asserts he cannot work due to his service-connected depression. He also asserts his depression made him unable to attend school in a successful manner. The Veteran asserts he had difficulty "establishing and maintaining effective relationships, adapting to and tolerating stressful circumstances, and adapting to work or a work like setting." The Veteran underwent another VA examination in December 2019. The examiner stated the Veteran had, "occupational and social impairment with reduced reliability and productivity." The Veteran reported depression, insomnia, fatigue, feelings of worthlessness, low self-esteem, difficulty concentrating, an inability to feel pleasure, and psychomotor agitation. The Veteran reported a good relationship with his mother and father but no longer with his brother. The Veteran was not currently working and while he had previously stopped attending school, he was again enrolled. He reported working some part time jobs in 2017 and gained full time employment but was laid off in February 2019. He stated he would leave early due to stress and had "too many VA appointments that interfered with work." The examiner noted chronic sleep impairment, depressed mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran was alert and "grossly oriented to person, place, and time...." While the examiner stated the Veteran did not appear to be exaggerating his symptoms, his occupational impairments are partially due to "uncontrolled circumstances (being laid off, injured at work)." The Veteran's grooming and hygiene were intact as well as his recent and remote memory. His thought process was logical and linear, insight and judgment were intact, and he denied any suicidal ideations. While the examiner noted a worsening of symptoms, he did not assert any life-threatening findings. In February 2020 the Veteran submitted his private mental health records from Dr. W. The Veteran reported experiencing flashbacks, sporadic panic attacks, depression, worthlessness, hopelessness, and issues with concentration, impulsivity, and inattention. The Veteran also reported hospitalization for suicide attempts in 2013 and 2014. The Veteran indicated he sought medical treatment in 2013 during an active suicidal ideation and again in 2014 when he attempted to drive his car off the road. However, the Veteran denied any current suicidal ideations at the time of this examination. The Veteran also reported anger issues resulting in the Veteran punching holes in tables and slamming things down. The Veteran was not currently working after being laid off and lives alone. At the appointment, the Veteran's speech was circumstantial and tangential. He described himself as depressed but denied any suicidal or homicidal intent. His memory was within normal limits and his insight was stated to be "likely deficient." The Veteran was no longer in contact with his brother but still maintained a relationship with his mother and father. He also has a few fellow Veteran friends but avoids social setting especially in large crowds. The provider stated the Veteran was "decompressed on two occasions resulting in psychiatric hospitalizations in 2013 and 2014." The Veteran also submitted a mental health disability benefits questionnaire in February 2020 from Dr. W. The provider stated the Veteran had "occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood" as opposed to "total occupational and social impairment." The Veteran did not report working and again stated he was hospitalized in 2013 due to suicidal ideations. The Veteran reported experiencing depression, anxiety, suspiciousness, panic attacks weekly or less often, depression, chronic sleep impairment, mild memory loss, flattened affect, circumstantial speech, difficulty understanding complex commands, and impaired judgement. He also reported mood disturbances, difficulty establishing work and social relationships and adapting to stressful circumstances. The examiner noted an inability to establish and maintain effective relationships, impaired impulse control, and intermittent inability to perform activities of daily living, including maintenance of personal hygiene. The Veteran's VA outpatient records from February 2020 show that the Veteran denied suicidal ideations. The Veteran was asked if, in his lifetime has he "ever done anything, started to do anything, or prepared to do anything to end [his] life" to which the Veteran stated "no." The Veteran provided the same assertions in a June 2020 VA emergency department nursing triage note. The Veteran also submitted correspondence in August 2021 detailing his symptoms from February 2019 to the present. The Veteran reported he rarely leaves home because he feels unsafe. He avoids crowds as they can anger him, he reports significant road rage, issues with co-workers, and hitting walls when angry. He reports having friends to include some from the military. He also keeps in contact with his mother and father. He reports feeling depressed but that his symptoms have remained consistent from February 2019 to April 2020. He again reports that he was hospitalized in 2014 due to his suicidal ideations. The Board acknowledges the Veteran's reports of hospitalization in 2013 and 2014 due to suicidal ideations. However, the Veteran's VA outpatient records also reflects the Veteran reported his car was stolen in May 2014. As stated above, the Veteran denied past suicidal attempts on multiple occasions throughout the appeal period. The Board notes that in an August 2021 correspondence, the Veteran asserts he was experiencing suicidal ideations in 2013 when he attempted to drive his car off the road which resulted in a hospital visit and subsequent psychiatric treatment. However, while there appears to be reports of a car accident in June 2013 and May 2013, neither report indicates any psychiatric issues at the time of treatment. The Veteran also reports hospitalization in 2014 and while his VA outpatient records show mental health treatment, there are no assertions of suicidal attempts found. Additionally, as stated above, the Veteran reported his car was stolen in May 2014 and subsequently denied any suicidal attempts in September 2014. No additional reports of car accident were found in the Veteran's VA outpatient records and the Veteran consistently denied suicidal ideations throughout the appeal period in question. He also explicitly denied past attempts on his life. In light of the above, the Board does not find that the reports regarding a 2013 and 2014 suicide attempt and hospitalization to be sufficiently credible to establish that the Veteran was a persistent danger to himself during the appeal period. The Board finds that since June 6, 2014, a rating of 100 percent is not warranted, as the evidence does not show total social and occupational impairment at any time. As detailed in the prior analyses, while the Veteran shows significant occupational impairment there is no indication the Veteran has total social impairment. The Veteran has maintained a good relationship with his mother, father, and military friends throughout the period in question and derived varying levels of social and financial support from them. The evidence of record does not show the Veteran exhibited total social and occupational impairment since June 6, 2014. The claim is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Associate Counsel, S. Conti 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.