Citation Nr: 21074623 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-15 934A DATE: December 15, 2021 ORDER Entitlement to a rating in excess of 70 percent for major depressive disorder with psychotic features is denied. FINDING OF FACT The Veteran's major depressive disorder with psychotic features has manifested in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for major depressive disorder with psychotic features are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (Code) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from August 1963 to August 1967 and from February 1968 to August 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2017 rating decision. Most recently, in an October 2021 decision, the Board denied higher ratings for a right shoulder disability and remanded the claim remaining on appeal for additional development. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Entitlement to a rating in excess of 70 percent for major depressive disorder with psychotic features. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Major depressive disorder is rated under Code 9434 and the General Rating Formula for Mental Disorders. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that bears on occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. The extent of social impairment shall also be considered, but an evaluation may not be assigned based solely on the basis of social impairment. 38 C.F.R. § 4.126. A 30 percent rating is assigned for 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 an inability to establish and maintain effective relationships. A 100 percent evaluation 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. The Board notes that the records contain various global assessment of functioning (GAF) scores. However, GAF scores have been found to be unreliable and not sufficient evidence for rating a psychiatric disorder. See Golden v. Shulkin, 29 Vet. App. 221, 226 (2018). In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. When adjudicating psychiatric claims, the Board has an obligation under Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) to conduct a three-part "holistic" analysis. The first step of the analysis is to assess the "severity, frequency, and duration of the signs and symptoms" of the Veteran's condition. The second step is to quantify symptoms." The third step is to assign an "evaluation that most closely approximates that level of occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013) (holding that the disability rating schedule for psychiatric disabilities reflects "objectively-observable symptomatology," and "it is the severity of the effects of the symptoms as described by the examiner that determines the rating."). Where entitlement to compensation has already been established and an increase in the disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In a claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Analysis The instant claim for an increased rating was received in August 2017. Accordingly, the period for consideration begins one-year prior in August 2016. A March 2017 psychiatry follow up assessment record notes PTSD, general anxiety disorder, and persistent depressive disorder (moderate, with intermittent major). The Veteran reported not leaving his home due to pain, anxiety, and depression. He denied suicidal or homicidal ideation and experiencing auditory or visual hallucinations. An April 2017 psychiatry follow up assessment record notes PTSD, general anxiety disorder, and persistent depressive disorder. The treatment provider noted that the Veteran continued to isolate in his room and spent most of his time watching television. The Veteran reported that his mood was mostly fair and denied experiencing thoughts of hopelessness, worthlessness, and suicidal or homicidal ideation as well as auditory or visual hallucinations. He reported stable relationships and a stable home environment with his wife and daughter. He reported being medication compliant without side effects. A June 2017 psychiatry follow up assessment record notes PTSD, general anxiety disorder with panic attacks, and persistent depressive disorder. The Veteran reported that he had not been doing good. The Veteran was accompanied by his wife, who reported for at least the last month the Veteran was no longer completing activities of daily living as he once was and required encouragement to shower. She reported the Veteran spent most of his time in bed. The treatment provider reported that the Veteran stopped taking his medication a little over a month prior. The Veteran denied passive death wishes or suicidal ideation. He also denied homicidal ideation and auditory and visual hallucinations. A July 2017 psychiatry follow up assessment record notes persistent depressive disorder, PTSD, and general anxiety disorder with panic attacks. The Veteran reported that he had not been doing good. He reported depressive symptoms of decreased energy, appetite, concentration, and anhedonia. He also reported decreased self-care and hygiene. He indicated increased anxiety when forced to leave the house and reported avoiding leaving his room. The Veteran denied suicidal and homicidal ideation and denied auditory and/or visual hallucinations. An August 2017 psychiatry follow up assessment record notes PTSD, generalized anxiety disorder with panic attacks, and persistent depressive disorder. The Veteran reported an improved mood. The Veteran was accompanied by his daughter. She reported the Veteran had been more active around the house and engaging more with family. The Veteran reported fair sleep. He denied suicidal and homicidal ideation and auditory and visual hallucinations. The treatment provider noted that a mental status examination showed the Veteran had appropriate grooming and hygiene and was calm and cooperative with fair eye contact. A September 2017 psychiatry record notes the Veteran reported experiencing decreased energy and lack of motivation. He noted a fair appetite and sleep. He denied flashbacks, dissociation, nightmares, suicidal ideation, homicidal ideation, and auditory and visual hallucinations. Pursuant to the claim on appeal, the Veteran was afforded a psychiatric examination in December 2017. The examiner reported that the Veteran arrived very disheveled with a body odor and that his affect was flat with dysthymic mood. The examiner noted the record had not previously mentioned hallucinations, but on examination the Veteran indicated he began hearing "singing and talking" one month prior to the examination. The examiner reported a diagnosis of severe major depressive disorder with psychotic features. The examiner found psychiatric symptoms of depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, and neglect of personal appearance and hygiene. The examiner concluded that the symptoms result in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood. In December 2017, a VA treatment provider noted diagnoses of PTSD, general anxiety disorder with panic attacks and persistent depressive disorder. The treatment provider noted appropriate grooming and hygiene. The Veteran reported an improved mood since his last appointment with decreased avoidance, and increased social engagement. He reported occasional hyperarousal and re-experiencing symptoms. He denied suicidal and homicidal ideation as well as auditory and visual hallucinations. During VA psychiatric treatment in August 2019, September 2019, November 2019, February 2020, March 2020, April 2020, June 2020, and October 2020, the Veteran reported doing fair. He denied experiencing suicidal and homicidal ideation and auditory and visual hallucinations. A December 2020 psychiatry telephone record notes that the Veteran's family reported the Veteran had been spending more time in bed and had been less motivated and more isolated with mild irritability. However, the Veteran reported he was doing okay and he denied experiencing suicidal and homicidal ideation and auditory and visual hallucinations. A January 2021 psychiatry telephone record notes the Veteran's daughter reported the Veteran's mood continued to be depressed and expressed concerns that his memory was getting worse. She reported that the Veteran was not attending to his activities of daily living and spent most of his day sitting on the couch or laying in bed. The Veteran denied suicidal and homicidal ideation and auditory and visual hallucinations. A July 2021 psychiatry telephone record notes the Veteran reported feeling okay. The Veteran's wife was present on the phone call and reported the Veteran was still able to perform activities of daily living independently. He denied suicidal or homicidal ideation and auditory and/or visual hallucinations. After engaging in a holistic analysis assessing the severity, frequency and duration of the signs and symptoms of the Veteran's major depressive disorder with psychotic features, recognizing that the symptoms listed in the rating criteria are non-exhaustive examples and when looking at the effects determining the impairment level, the Board finds that a rating of in excess of 70 percent is not warranted. See Vazquez-Claudio, 713 F.3d at 117; Bankhead, 29 Vet. App. at 22; Mauerhan, 16 Vet. App. at 442. In this regard, the record does not indicate that the Veteran has experienced gross impairment in thought processes or communication, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, or memory loss for his name, occupation, or names of close relatives. The Board notes that the Veteran reported auditory hallucinations at the time of the December 2017 examination, but his treatment records do not indicate the presence of persistent delusions or hallucinations. In addition, the evidence shows intermittent reports of insufficient personal hygiene. However, the Veteran has not claimed and the evidence does not show that he has an inability to maintain a minimal standard of personal hygiene. Ultimately, the evidence of record shows that the severity of the Veteran's psychiatric symptoms result in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. The December 2017 examiner found that the Veteran's psychiatric symptoms result in deficiencies in most areas rather than total occupational and social impairment. His treatment records since the examination also do not indicate total occupational and social impairment. Furthermore, the evidence shows that the Veteran has consistently retained a good relationship with his wife and daughter, so he has not experienced total social impairment. The preponderance of the evidence shows that the Veteran's major depressive disorder with psychotic features has manifested in occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. Therefore, the benefit-of-the-doubt doctrine is not applicable and a rating in excess of 70 percent is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. DAVID JIMERFIELD Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Staskowski, Nichole 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.