Citation Nr: 21072420 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-30 520 DATE: December 3, 2021 ORDER Entitlement to an initial disability rating of 70 percent prior to February 23, 2017, for service-connected major depressive disorder (MDD) is granted. FINDINGS OF FACT 1. The Veteran reported attempted suicide in or around 1987-89 and again in the late 1990s. 2. The Veteran has occupational and social impairment with deficiencies in most areas as a result of suicidal ideation. CONCLUSION OF LAW The criteria for an initial disability rating greater of 70 percent prior to February 23, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.126, 4.130, Diagnostic Code 9433-9411. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Army from May 1974 to October 1996. Over the course of his lengthy and honorable service, the Veteran was awarded (among other decorations) the Meritorious Service Medal, the Army Commendation Medal, and the Army Achievement Medal. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a September 2014 rating decision issued by the Department of Veteran's Affairs (VA) Regional Office (RO). The Veteran filed a notice of disagreement in December 2014 and the RO issued a statement of the case in February 2017. The Veteran's claims file was initially considered closed because the Veteran failed to file a timely appeal. The Veteran then filed a new claim, which included an increased rating for major depressive disorder on February 23, 2017. On April 19, 2017, the Veteran filed a statement in support of his claim. The RO then issued a rating decision in August 2017 granting an increased disability rating for the Veteran's major depressive disorder effective February 23, 2017. The Veteran filed a notice of disagreement claiming that he was entitled to an increased disability rating effective prior to February 2017. The RO issued a statement of the case in April 2018 and the Veteran filed a timely VA Form 9. In July 2019, the Board denied the Veteran's claim for an increased disability rating for MDD and earlier effective date for MDD. In November 2020, the Board again denied the Veteran's claim for an increased rating for MDD prior to February 23, 2017. The Veteran appealed the Board's November 2020 decision to the United States Court of Appeals of Veterans Claims (CAVC). CAVC partially vacated and remanded the Board's decision in August 2021 pursuant to a joint motion for remand. Pursuant to the joint motion for remand issued in August 2021, the Board's careful review of the prior Board decisions, and viewing the complicated case history in the light most favorable to the Veteran, the Board finds that the period on appeal dates back to November 2013, the date that the Veteran initially filed the claim for Major Depressive Disorder. This matter is now properly before the Board. Increased Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Major Depressive Disorder (MDD) is rated under the General Rating Formula for Mental Disorders, which provides that, a 30 percent rating is assigned when a veteran's psychiatric disorder causes 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). A 50 percent evaluation is assigned when a veteran's psychiatric disorder causes 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; or difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is assigned when a veteran's psychiatric disorder causes 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); or an inability to establish and maintain effective relationships. A 100 percent rating is assigned when a veteran's psychiatric disorder causes total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9413. When rating a mental disorder, VA must consider the frequency, severity, and duration of the Veteran's psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency must assign a rating 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 the examination. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. Entitlement to an initial disability rating greater than 30 percent prior to February 23, 2017, for service connected MDD. The Veteran contends that he is entitled to an initial disability rating greater than 30 percent prior February 23, 2017. The Veteran particularly contends that he is entitled to a disability rating of 70 percent during the period on appeal. The Veteran initially filed an application for compensation for MDD in November 1996. The Veteran's claim was denied in November 1996. The Veteran filed an application for compensation and pension on November 18, 2013 to reopen the claim for MDD. In March 2014, the Veteran submitted a statement in support of his claim. The Veteran's lay statement indicated that around 1988 the Veteran began experiencing an unexplained physical and mental state. The Veteran reported that he had moods triggering feelings of doom, anxiety, and lack of energy. The Veteran reported that in 1990 his symptoms progressed, and his symptoms of anxiety and depression worsened. The Veteran reported that in 1990, when his wife was traveling and while his sons were in their bedrooms, he attempted to take his life by taking sleeping pills. The Veteran reported that he felt that his psychiatric illness was treated as taboo and career limiting. The Veteran later sought out treatment outside of the Army and he took an extended leave of 45 days. The Veteran reported taking daily dosage of Prozac. The Veteran reported a second suicide attempt; however, he did not indicate the specific date in his March 2014 statement. The Veteran reported that his job duties are difficult. The Veteran noted that he finds it difficult to find jobs where he can best provide support and high performance. In a February 2014 medical note from a non-governmental facility, the Veteran's treating physician noted that the Veteran denied feelings of depression, anxiety, high stress level, and sleep disturbance. The Board assigns little probative weight to this note as it stands alone in the Veteran's overall medical history and contrary to the Veteran's report of symptoms over time. The Veteran was afforded a VA examination in August 2014. The August 2014 VA examiner confirmed that the Veteran does have a diagnosis of major depressive disorder. The examiner noted that the Veteran's level of occupational and social impairment was 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 examiner then went on to discuss the Veteran's history, noting the Veteran's education. The examiner noted that after discharge, the Veteran obtained a contracting position in marketing. The examiner also reviewed the Veteran's mental health history. The examiner noted that the Veteran did not have any known psychiatric history prior to service. The examiner noted that the Veteran experienced depression and emotional stressors while in service. The examiner noted that the Veteran reported attempted suicide and took a 45 day leave of absence and sought psychiatric care in El Paso, TX. The Veteran reported that medication was helpful and that he returned to Fort Lee where he was stationed. The examiner further found that the Veteran continues care through his private psychiatrist. The examiner also noted that the Veteran again attempted suicide in the late 1990s. The examiner noted that the Veteran's symptoms include depressed mood and chronic sleep impairment. The Veteran presented for evaluation casually dressed and well groomed. In an April 2017 statement in support of claim, the Veteran reported that he felt helpless and suicidal. The Veteran again reported that he attempted suicide twice. The Veteran also reported in his April 2017 statement that he suffered from symptoms of anxiety and depression. The Veteran reported that the symptoms worsened, and he had a relapse for his medical condition in 1994. The Veteran stated that after his relapse he had to take 60 days to recover through treatment. The Veteran indicated that his private physician indicated he would be taking medication for his MDD for the rest of his life. The Veteran reported that he retired two years after his relapse in October 1996. The Board finds that the Veteran is competent and credible to report his symptoms associated with his MDD. The Veteran has consistently reported that he had two suicide attempts since the late 1980s to 1990s. The Board finds that the Veteran is competent to report his symptoms and his medical history. The Board also finds that the Veteran is credible as his reported symptoms and report of events throughout the entire period on appeal have been consistent. The Board finds that the Veteran's reports of suicidal ideation are highly probative. The evidence reflects that the Veteran's symptoms associated with his diagnosed MDD most closely meet the criteria associated with a 70 percent disability rating. The Veteran's medical records and his lay statements indicate that the Veteran had suicidal ideations. A 70 percent evaluation is assigned when a veteran's psychiatric disorder causes 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 and difficulty in adapting to stressful circumstances (including work or a work like setting); or an inability to establish and maintain effective relationships. The Veteran reports that he his mood swings impacted his work life, that his depression and anxiety impacted his family relationship. Furthermore, the record supports a finding that the Veteran's attempted suicide and diminishing mental state impacted his family life. The Veteran also reported that his first attempt at taking his own life was while his children were at home with him in the next room. The Board finds that the Veteran is entitled to a disability rating of 70 percent prior to February 23, 2017 as the record clearly reflects that the Veteran's symptoms meet that which is prescribed under 38 C.F.R. § 4.130, Diagnostic Codes 9411, 9413. The Board has considered whether the Veteran is entitled to the next higher disability rating under Diagnostic Codes 9411, 9413, 100 percent disabling prior to February 23, 2017. The Board finds that the Veteran does not meet the criteria as the Veteran did not experience a gross impairment in thought process and communication, persistent delusions or hallucinations or grossly inappropriate behavior prior to February 23, 2017. The Veteran was able to work after retiring from the military and was able to reach out and obtain help and treatment for his MDD prior to February 23, 2017. The Board finds that the Veteran is not entitled to a 100 percent disability rating prior to February 23, 2017. Overall, based on the totality of the evidence, and viewing the evidence in the light most favorable to the Veteran, the Board finds that the Veteran's disability picture more closely approximates the criteria for a 70 percent rating prior to February 23, 2017. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Hailu, 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.