Citation Nr: 21075092 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 15-39 558 DATE: December 17, 2021 ORDER Entitlement to a 70 percent, but no higher, rating for depression prior to November 14, 2017 is granted, subject to the law and regulations governing the payment of monetary awards. FINDING OF FACT Prior to November 14, 2017, the severity, frequency, and duration of the Veteran's symptoms more closely approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Prior to November 14, 2017, the criteria for a disability rating of 70 percent, but no higher, for depression are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1984 to December 1989. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In a March 2018 decision, the RO granted an increased rating to 100 percent for depression, effective November 14, 2017. As the 100 percent rating is the maximum rating available, the period from November 14, 2017 is not on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In December 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in June 2019 when it was remanded for further development. Pursuant to the June 2019 remand, the RO requested the Veteran complete a VA Form 21-4142 for the complete treatment records from Dr. E.M., his treating psychiatrist. In December 2019, the RO requested the Veteran complete a release for the records. However, the Veteran failed to respond and there is no evidence that the correspondence was returned as undeliverable. The Board notes that the duty to assist is not a one-way street. If a Veteran desires help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining evidence. Wood v. Derwinski, 1 Vet. App. 190 (1991). Thus, the Board finds that VA has satisfied the duty to assist. No further notice or assistance to the Veteran is required to fulfill VA's duty to assist in development. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board further notes that when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a total disability rating based on individual unemployability (TDIU) will be considered to have been raised by the record as "part and parcel" of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009). In this case, the evidence prior to November 14, 2017 indicates that the Veteran was employed, and there is no evidence that the employment was not substantially gainful. As such, a claim for entitlement to a TDIU has not been raised. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities found in 38 C.F.R. Part 4. The percentage ratings are assigned based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to disability compensation has already been established and an increase in the assigned rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Depression prior to November 14, 2017 The Veteran seeks a rating in excess of 50 percent for depression prior to November 14, 2017. The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. On July 10, 2012, the Veteran filed a claim for an increased rating his service-connected depression. Therefore, for purposes of this appeal the evaluation period begins July 10, 2011 (i.e., one year prior to the date of claim). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 50 percent rating is assigned when symptoms such 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 cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation, or own name. Private treatment records from September 2011 note that the Veteran was suffering from insomnia several nights a month. He was alert, speech was clear, and affect was somewhat anxious, but bright. In December 2011, it was noted that the Veteran had increased stress as a result of work issues and holidays. He was alert, speech was clear, and affect was somewhat depressed. In January 2012, the Veteran had poor sleep and was worried about his daughter. He was alert, had a worried affect, speech was clear, and thought was normal. In June 2012, it was noted that he had a difficult time financially but was tolerating stress. His mood was overall fine. Focus and attention to work was good. He was alert, speech was clear, and affect was normal/good. In November 2012, he was noted to be doing better and his mood stayed more stable than before. VA treatment records from February 2013 indicate that the Veteran was living with his wife of 18 years and their 6-year-old daughter. He worked as a private investigator. He was well-dressed and groomed, had good eye contact, and had a frustrated affect. There was no suicidal or homicidal ideation. In May 2013, he was noted to be alert, attentive, and oriented times 3. He was well-groomed, had good eye contact, and his speech was not pressured and was coherent with no formal thought disorder noted. He was mildly depressed/dysthymic, affect was stable and appropriate, the Veteran denied active hallucinations, and denied active suicidal or homicidal ideations. Insight and judgment were adequate. The Veteran underwent a VA examination in September 2013. The Veteran's level of occupational and social impairment was best summarized as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran was married for 17 years. He worked as a self-employed private investigator. He would have bad weeks and would go into the office and sleep all day and could not do simple things, including answering the phone, and work would get backed up. He indicated that he could not function during those periods. These periods would occur once a month and last two to three weeks. For the past six years, he struggled with anxiety and depression, and would worry about 80 percent of the time. He reported that a large part of his anxiety and depression were related to his medical problems, and that about once a week he would struggle with his sleep. He also reported losing interest in golf and talking to people. The Veteran's symptoms included depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. The examiner noted that the Veteran was appropriately dressed, had adequate grooming and personal hygiene, was oriented to person, place, and time, and cooperative, alert, and polite. He reported an "ok" mood. Speech was normal, and no symptoms of psychosis and abnormal motor movements were observed. The Veteran denied current suicidal or homicidal ideation. A February 2014 private psychiatric evaluation report indicated that the Veteran was married, employed, quite functional, but with worsening depression and related anxiety symptoms. He felt sometimes it was difficult to motivate himself for work. Around four to five weeks ago, he was in a small holding cell with a defendant and had a claustrophobic episode for the first time. In a May 2014 social work evaluation, it was noted that the Veteran was alert and oriented times 4. His mood was euthymic, and affect was full. Thought processes were coherent and goal oriented. Insight and judgment were good, and speech and eye contact were normal. He did not express anu suicidal or homicidal ideation. In November 2014 private treatment records, it was noted that the Veteran was feeling more blue and he was worrying about his mortality, aging, and his young child. An October 2015 letter from the Veteran's private psychiatrist indicated that a medication regimen has not been able to raise his functional level to a degree at which he could work on a continuous basis. There had been times he could not work at all, lasting up to two weeks, and affecting his financial status. An October 2017 statement from the Veteran's sibling, T.J., indicated that the Veteran's depression had increased tremendously, he was unable to work, and most days had a hard time getting out of bed. T.J. stated that he was now experiencing panic attacks. At his December 2018 hearing before the Board, the Veteran stated that around 2011, he did not want to eat, sleep, and work, and these symptoms had continued. He avoided the phone, lost interest in hobbies, and sometimes did not want to talk to anyone. He had problems with short-term memory, and sometimes long-term memory. He would experience panic attacks, and would shut down for at least two weeks of every month. He was constantly fearful that something was going to happen to his daughter and became overprotective. He indicated worrying about things a lot. Following a review of the record, the Board concludes that prior to November 14, 2017, the Veteran's symptoms more nearly approximated the level of impairment required for a disability rating of 70 percent, but no higher. VA and private treatment records, the September 2013 VA examination, and the Veteran's lay statements show that the Veteran's depression was manifested by symptoms associated with a 70 percent rating, such as difficulty in adapting to stressful circumstances, and symptoms associated with a 50 percent rating, including disturbances in motivation and mood such as low motivation, some panic attacks, impairment of short and some long-term memory, impaired judgment, and difficulty in maintaining effective work and social relationships. He also had symptoms that are not listed with a specific rating, such as worry, poor appetite and sleep, and loss of interest in activities such as golf. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. Although the Veteran reported depression affecting the ability to function effectively and difficulty adapting to stressful circumstances at work; the Veteran reported that these symptoms were not present daily, but he would have "bad weeks" and symptoms would occur for a couple weeks about once a month. During these periods, the Veteran indicated that he would be unable to function, including sleeping all day at work and being unable to do simple things, like answering the phone. When considering the extent of these symptoms in conjunction with the Veteran's other symptoms, the Board concludes that they resulted in occupational and social impairment with deficiencies in most areas, and more nearly approximated the criteria for a higher 70 percent rating. The weight of the evidence is against a finding that the Veteran's symptoms prior to November 14, 2017 more nearly approximated the criteria for a 100 percent rating. The record reflects that the Veteran remained gainfully employed during this period as a private investigator; therefore, although the evidence reflects that his symptoms resulted in a deficiency in the area of work, they did not more nearly approximate total occupational impairment during this time. Additionally, although the record reflects that he had lost interest in talking to people and in playing golf, the record also shows that he remained married and had relationships with his daughter and his sibling, T.J. This evidence most nearly approximates a deficiency in the area of family and social relationships and does not reflect total social impairment, as required for a higher 100 percent rating. The Veteran also reported one instance of claustrophobia in a small jail cell, but the evidence indicates this only occurred once and there is no evidence that it continued. Further, the frequency, duration, and severity of symptoms such as worry, poor appetite and sleep, and loss of interest in activities more nearly approximate a deficiency in the area of mood, rather than total occupational and social impairment. The weight of the evidence is also against a finding that the Veteran had symptoms such 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. Mental status examinations in VA and private treatment records and the September 2013 VA examination indicate that the Veteran was appropriately dressed, groomed, and had good personal hygiene. He was oriented to person, place, and time, and cooperative, alert, and polite. His judgment and insight were good, and speech was normal. He had no symptoms of psychosis and abnormal motor movements. The Veteran also denied hallucinations and suicidal or homicidal ideations. The preponderance of the evidence is against a finding that the frequency, duration, and severity of the Veteran's symptoms resulted in total occupational and social impairment during this period. Therefore, the Board finds that a rating in excess of 70 percent for the Veteran's depression is not warranted prior to November 14, 2017. In summary, the evidence reflects that the Veteran's occupational and social functioning more nearly approximated the criteria for a 70 percent, but no higher, rating prior to November 14, 2017. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.