Citation Nr: 21067760 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-10 070 DATE: November 5, 2021 ORDER A 50 percent rating, but no higher, for anxiety and depressive disorders, to include on an extraschedular basis, prior to July 25, 2012, is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, prior to July 25, 2012, his anxiety and depressive disorder more closely approximated occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for a 50 percent rating, but no higher, prior to July 25, 2012, including on an extraschedular basis, for anxiety and depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§3.102, 3.321(b), 4.14.10, 4.130, Diagnostic Code (DC) 9413. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1966. This matter has a procedural history which includes a Board Decision in September 2020 and a July 2021 Order of the Court of Appeals for Veterans Claims (Court) which enacted a Joint Motion for Partial Remand (JMPR) vacating portion of the Board's Decision which denied a rating higher than 30 percent, including on an extraschedular basis, prior to July 25, 2012, for the Veteran's anxiety and depression. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 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. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Anxiety and Depressive Disorder Prior to July 25, 2012 The Veteran's anxiety and depression were service connected as of July 13, 2004, at a 30 percent rate under DC 9413. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that a 50 percent rating 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted where 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. The United States Court of Appeals for the Federal Circuit held that 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." Vasquez-Claudio v. Shinseki, 713 F.3d 112, 11617 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, "serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas"i.e., "the regulation... requires an ultimate factual conclusion as to the veteran's level of impairment in 'most areas.'" Vasquez-Claudio, 713 F.3d at 11718; 38 C.F.R. § 4.130, Diagnostic Code 9413. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission." 38 C.F.R. § 4.126(a). The Board must also "assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination." Id. At the outset, the Board notes that the evidence of record does not show that prior to July 25, 2012, the Veteran's anxiety and depression rendered him totally occupationally and social impaired. The Veteran, himself, acknowledged that his disability did not warrant a 100 percent rating prior to July 25, 2012, in his September 2021 Informal Hearing Presentation (IHP) when he stated that prior to July 25, 2012, his anxiety and depression warranted a 70 percent rating, or at a minimum, a 50 percent rating. Thus, a 100 percent rating prior to July 25, 2012, for the Veteran's anxiety and depression is not supported by the record. As to the applicable rating for the Veteran's anxiety and depression, the Board finds that resolving reasonable doubt in favor of the Veteran, a 50 percent rating prior to July 25, 2012, is warranted. As stated above, a 70 percent rating is warranted when symptoms such 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 worklike setting); inability to establish and maintain effective relationships. Prior to July 25, 2012, the Veteran regularly endorsed symptoms of depression, nightmares (multiple times a week to one per month), irritability, a short temper, hypervigilance, sense of a foreshortened future, fatigue, isolation behaviors, low frustration tolerance, intrusive memories, flashbacks, road rage, anxiety attacks, feelings of worthlessness and guilt, poor sleep, poor concentration, feeling unhappy, and getting nauseous when presented with new situations. VA treatment providers noted that the Veteran was fully oriented, cooperative, and pleasant. His grooming and hygiene were good, his speech was fluid and non-pressured, his eye contact was normal, his thought process were linear and intact, and his insight and judgment were fair to good. The Veteran's mood and affect throughout this time period ranged from neutral with a congruent affect to a euthymic mood with an appropriate affect to a mildly depressed mood with a moderately anxious affect. It was documented that the Veteran did not exhibit behaviors indicative of delusions, hallucinations, overt mood swings, or issues with perception. Though the Veteran endorsed anxiety attacks, he regularly denied panic attacks. Furthermore, the Veteran maintained a relationship with his spouse and other family members as well as maintaining employment throughout the period on appeal. After review of the record, the Board does not find that the Veteran's disability, as a whole, meets the criteria necessary for a 70 percent rating. He did not endorse or present with symptoms of speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria have determined that these types of symptoms are more indicative of a disability which causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. As the Veteran did not endorse such symptoms the Board cannot find that his disability rose to such a level. The Board is aware that the JMPR returned this issue to the Board due to the prior Decision's lack of discussion of a May 17, 2005, VA medical record in which the Veteran reported "thoughts of death." As interpreted by the parties to the JMPR, this statement was considered endorsing suicidal ideation. The Board disagrees with this interpretation of the Veteran's statement. Specifically, on that date the Veteran denied suicidal ideation. Additionally, a May 13, 2005, VA medical record also noted the Veteran denied suicidal ideation. Furthermore, the Veteran denied suicidal ideation in multiple other VA visits during this time-frame. See June 27, 2005, October 3, 2005, January 3, 2006, April 3, 2006, VA medical records. The Board interprets the Veteran's statement as thought of death in a general sense or of dying but there is no evidence to support that the Veteran in the May 17, 2005, record had suicidal ideation. Indeed, the Veteran specifically denied such thoughts in that exact VA visit and in the visit 4 days prior. As stated in the prior Decision, the Veteran overwhelmingly denied suicidal ideation prior to July 25, 2012. A review of the Veteran's private treatment records also shows that the Veteran did not report suicidal ideation, as such symptomology was not noted in the records from Dr. J.W. from 2002 to 2009. These records do show the Veteran discussed his depression and anxiety with this provider, such that had the Veteran endorsed suicidal ideation, it would be expected to be contained in these records. See AZ v. Shinseki, 731 F.3d 1303, 1318 (Fed. Cir. 2013) (recognizing the widely-held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). As discussed in the prior Board Decision, the Veteran did report a history of suicidal ruminations in a June 7, 2005, VA visit. However, this report was an outlier in the Veteran's consistent denial of suicidal ideations, as discussed above. As the Board previously stated, the report of a history of suicidal ruminations suggests that these ruminations were both passive and in the past. The facts of this case are still distinguishable from those described in Bankhead v. Shulkin, 29 Vet. App. 10 (2017), in which the U.S. Court of Appeals for Veterans Claims (Court) held that the presence of suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas (a 70 percent disability rating under 38C.F.R. §4.130). Furthermore, there is no notation in the June 7, 2005, that the Veteran endorsed present suicidal ideation. Thus, after review of the record, the Board finds that a 50 percent rating, but no higher prior to July 25, 2012, is warranted. In so finding, the Board has considered whether an extraschedular rating is appropriate. (Continued on the next page) In exceptional cases where the schedular disability ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38C.F.R. §3.321(b). In Thun v. Peake, the Court explained how the provisions of 38C.F.R. §3.321 are applied. Thun v. Peake, 22 Vet. App. 111, 11516 (2008). Specifically, the Court stated the determination of whether a veteran is entitled to an extraschedular rating under §3.321 is a three-step inquiry. First it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated there must be a comparison between the level of severity and the symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the veteran's disability level and symptomatology, the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no extraschedular rating required. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors, such as marked interference with employment or frequent periods of hospitalization, then the veteran's disability picture requires the assignment of an extraschedular rating. Id. Regarding the first step of the extraschedular analysis, the schedular rating criteria used to rate the Veteran's service-connected psychiatric disability describe and assess the Veteran's disability level and symptomatology. The criteria rate anxiety and depressive disorders on the basis of occupational and social impairment and the Veteran's total disability picture, including symptoms not specifically mentioned in the rating criteria. Thus, the demonstrated manifestations specifically associated with the Veteran's anxiety and depressive disorders are adequately contemplated by the provisions for the rating schedule. Therefore, the Board finds that the Veteran's symptoms of anxiety and depressive disorder are most closely approximated by the assigned 50 percent disability rating. Importantly, as described in detail above, the preponderance of the evidence is against finding that the Veteran's disability rises to the level of severity of the 70 or 100 percent rating. Considering the total disability picture, as noted in detail above, the Board finds the preponderance of the evidence is against an initial evaluation in excess of 50 percent prior to July 25, 2012. JOHN Z. JONES Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Parrish, 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.