Citation Nr: 21074168 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 19-28 780 DATE: December 14, 2021 ORDER A 70 percent rating for depressive disorder (psychiatric disability) prior to September 3, 2015, is granted. REMANDED Entitlement to a rating in excess of 70 percent for depressive disorder from September 3, 2015 is remanded. FINDING OF FACT The Veteran's depressive disorder is characterized by occupational and social impairment, with deficiencies in most areas due to such symptoms as suicidal ideation, difficulty in adapting to stressful circumstances (including work or a worklike setting), and inability to establish and maintain effective relationships; the preponderance of the evidence shows that the Veteran's psychiatric disability is not productive of disability analogous to total social and occupational impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but no greater, for PTSD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1985 to June 2014, including service in Saudi Arabia from August 1990 to March 1990 and in Iraq from February 2004 to February 2005 and from September 2009 to July 2010. In November 2021 correspondence, the Veteran withdrew his request for a hearing before the Board that was scheduled December 6, 2021. As such, the Board considers the hearing request withdrawn. 38 C.F.R. § 20.704 (e). The Board notes that the Veteran has been employed full-time during the relevant portion of the appeal period. Therefore, the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is not before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a rating in excess of 50 percent for depressive disorder prior to September 3, 2015. The Veteran seeks a higher rating for his service-connected psychiatric disability on the basis that the disability is more severely disabling since the effective date of service connection. The Veteran's depressive disorder is rated at 50 percent, effective July 1, 2014 and a 70 percent rating, effective September 3, 2015. His depressive disorder is currently rated under the General Rating Formula for Mental Disorders. 38C.F.R. §4.130, Diagnostic Code 9434. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted when the evidence shows 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 for 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 that 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 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; memory loss for names of close relatives, own occupation, or own name. 38C.F.R. §4.130, Diagnostic Code 9434. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi,16 Vet. App. 436, 443 (2002). In addition, in Mittleider v. West,11 Vet. App. 181 (1998), the Court held that VA regulations require that when the symptoms and/or degree of impairment due to a veteran's service-connected psychiatric disability cannot be distinguished from any other diagnosed psychiatric disorders, VA must consider all psychiatric symptoms in the adjudication of the claim. The Board notes that in a United States Court of Appeals for Veteran's Claims' (Court) decision, the Court concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent criteria. The presence of suicidal ideation alone, that is, a Veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin,29 Vet. App. 10, 18 (2017). As the evidence considered in determining the level of impairment under38C.F.R. §4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant's condition that affect occupational and social impairment. Mauerhan,16 Vet. App. at 443. If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate, equivalent rating will be assigned. Id. The Board finds that prior to September 3, 2015, the Veteran's service-connected depressive disorder has been productive of occupational and social impairment in most areas due, at least in part, to suicidal ideation. The March 2014 mental disorders examiner summarized the Veteran's impairment as occupational and social impairment due to mild or transient symptoms which decreases work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The Veteran reported anxiety and difficulty in adapting to stressful circumstances, including work-like setting. Additionally, through his representative, the Veteran reports that throughout the relevant portion of the appeal period, he has had suicidal ideation on a near daily basis and that on many days it caused him to be unable to get out of bed. Additionally, he reported his depressive disorder caused him to be unable to relate effectively with other people due to his depressed mood, lack of energy and feelings of worthlessness. See November 2015 Supplemental Statement to Notice of Disagreement. The Veteran stated, that since retiring from active-duty service he has experienced a variety of issues from deep bouts of depression, angry outburst, hypersensitivity to criticism and a desire to find conflict even in the most benign circumstances. See July 2019 Correspondence. In a July 2019 statement, the Veteran's wife stated that after his 2014 retirement from the military, the Veteran was increasingly agitated and short tempered. She reported, he was hypervigilant about everything and started buying guns. He would yell at people driving by and one night he got in a verbal altercation with a neighbor in front of the high school aged son and their friends. She reported they started to sleep in separated room because he would startle awake or would flail his arms and legs in his sleep. She noted, in July 2015, the police were called when the Veteran broke dishes and shoved her. The Veteran's spouse and their son spent the week in a hotel and looked for other housing options because they did not feel safe at home. See July 2019 Buddy Statement. Additionally, in a July 2019 statement, the Veteran's neighbor stated that in the fall of 2014 and the summer of 2015, he had to intervene at the Veteran's home when he became too aggressive and too agitated. See July 2019 Buddy statement. The totality of the evidence supports a finding that the Veteran's disability picture for his depressive disorder more nearly approximated depressed mood, anxiety, suspiciousness, chronic sleep impairment, problems with concentration, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. Moreover, he demonstrated persistent negative emotional state, irritable behaviors, hypervigilance, and causes clinically significant distress or impairment in social, occupational, or other important areas of functioning. The frequency, severity, and duration of the Veteran's impairment and assessing his disability picture, the Board finds that the preponderance of evidence demonstrates that his psychiatric disorder has approximated the schedular criteria for a rating of 70 percent. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The record also reflects that the Veteran has expressed his suicidal ideation. See November 2015 Supplemental Statement to Notice of Disagreement. In so finding, the Board notes that the United States Court of Appeals for Veterans Claims has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017) (stating the language of 38 C.F.R. § 4.130 "indicates that the presence of suicidal ideation alone, that is, a veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment in most areas."). Thus, resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a 70 percent disability rating for the Veteran's depressive disorder. Considering the frequency, severity, and duration of the Veteran's impairment to assess his disability picture, the Board finds that the evidence shows that the Veteran's depressive disorder has approximated the criteria for a 70 percent rating prior to July 1, 2014. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the evidence supports a 70 percent rating for the Veteran's depressive disorder. The Board finds that the preponderance of the evidence is against a finding that the Veteran's depressive disorder shows total occupational and social impairment sufficient to warrant a rating of 100 percent prior to September 3, 2015. The evidence does not demonstrate symptoms such as persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In light of the foregoing, the Board finds that the preponderance of the evidence is against entitlement to a rating in excess of 70 percent prior to September 3, 2015. As such, the appeal must be denied. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent for depressive disorder is remanded. In a November 2014 rating decision, service connection for depressive disorder was granted service connection for depressive disorder, with a rating of 10 percent, effective July 1, 2014. On his November 2015 VA Form 21-0958 (Notice of Disagreement) the Veteran asserted that his psychiatric disability should be evaluated as 70 percent disabling. In addition, the Veteran's attorney maintained that he had severe limitations caused by his service-connected depressive disorder and that a rating of at least a 70 percent schedular disability rating for his depressive disorder was warranted. In September 2019, the RO granted increased ratings of 10 percent disabling for depressive disorder, effective July 1, 2014 and 70 percent disabling, effective September 3, 2015. The September 2019 Statement of the Case (SOC) addressed entitlement to a rating in excess of 50 percent prior to September 3, 2015 for depressive disorder. An appellant may limit the scope of an appeal by clearly expressing an intent to exclude certain issues from appellate consideration. See AB v. Brown, 6 Vet. App. 35, 39 (1993); see also Hamilton v. Brown, 4 Vet. App. 528, 544 (1993) (noting the corollary to the rule that the Board adjudicate all claims reasonably raised by the claimant up until its decision, is that where the claimant expressly indicates an intent that adjudication of certain specific claims not proceed at a certain point in time, the Board has no authority to adjudicate those specific claims, absent a subsequent request or authorization from the claimant or his or her representative); Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014) (acknowledging that "the appellant generally controls the scope of appellate review"). In a claim for an increased evaluation, "the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation" and "such a claim remains in controversy where less than the maximum available benefit is awarded." See AB, 6 Vet. App. at 38. When determining whether an appellant limited the scope of an appeal, VA is required to liberally construe an appellant's submissions. Kalman v. Principi, 18 Vet. App. 522, 524 (2004) (citing EF v. Derwinski, 1 Vet. App. 324, 326 (1991)). Here, the Veteran's statement that his psychiatric disability should be rated at 70 percent for his psychiatric disability was a contention rather than a limitation of the appeal, especially in light of his attorney's arguments. Further, as to the claim of entitlement to disability rating in excess of 70 percent for depressive order from September 3, 2015, the Veteran submitted a timely notice of disagreement to the November 2014 rating decision, but a statement of the case has not yet been issued. A remand is required for the AOJ to issue a statement of the case. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: Send the Veteran and his attorney an SOC that addresses the issue of entitlement to an initial disability rating in excess of 70 percent for depressive disorder from September 3, 2015. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jordan, Jacquelynn 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.