Citation Nr: 21075606 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 16-35 453 DATE: December 21, 2021 ORDER Entitlement to an initial disability rating in excess of 50 percent for unspecified depressive disorder with anxious distress (herein depressive disorder) is denied. FINDING OF FACT The severity, frequency, and duration of the symptoms associated with the Veteran's depressive disorder do not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9410. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 2003 to July 2003. During this period of service, he served in Iraq and his decorations included the Combat Action Ribbon. The Veteran also had earlier active service from June 1998 to August 1998, June 1999 to August 1999 and June 2000 to July 2000. This case comes before the Board of Veterans' Appeals (Board) from a March 2014 rating decision. The Board remanded this claim in October 2018 and May 2021. The Board finds that there has been substantial compliance with the prior Board remands. See Stegall v. West, 11 Vet. App. 268 (1998). Besides the issues addressed below, the Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Depressive Disorder Background and Legal Criteria In the March 2014 rating decision on appeal, the agency of original jurisdiction (AOJ) granted entitlement to service connection for depressive disorder and assigned a 30 percent rating under DC 9410, effective October 10, 2013. Subsequent to the October 2018 Board remand, in a June 2020 rating decision the AOJ assigned a staged 50 percent rating for a portion of the appeal period (from December 7, 2018), followed by a return to the previously assigned 30 percent rating (from September 28, 2019). Subsequent to the May 2021 Board remand, in a September 2021 rating decision the AOJ assigned a 50 percent rating for the entirety of the appeal period, specifically from October 10, 2013. The Board notes that while the Veteran was assigned an increased 50 percent rating during this appeal, this represents only a partial grant because the maximum rating was not assigned and accordingly the increased rating claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) ("on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy where less than the maximum available benefit is awarded"). As such, the relevant issue before the Board is whether a rating in excess of 50 percent is warranted for the Veteran's depressive disorder. As noted, the Veteran's depressive disorder has been rated under DC 9410. This DC is rated under the General Formula for Mental Disorders (General Formula). Under the 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). Under the General Formula, 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. Evidence During the appeal period, the Veteran was afforded multiple VA examinations. First, the Veteran was afforded a VA examination in March 2014 and an Initial Posttraumatic Stress Disorder (PTSD) Disability Benefits Questionnaire (DBQ) was completed by Dr. J.A. The examiner noted a diagnosis of "Unspecified Depressive Disorder with anxious distress, mild." The examiner noted that the following best summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses: "[o]ccupational and social impairment 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 Board notes that this level of impairment is outlined in the 10 percent rating criteria under the General Formula. As to social, marital, and family history, it was noted that the Veteran had been married for 11 years. It was stated that the Veteran "described his current relationship with his wife as 'somewhere between poor and fair, depending on the day you ask me'" and that "[h]e described himself as 'closed off' and that he has a hard time communicating what he is thinking. 'We have almost separated quite a few times.'" It was also noted that the Veteran "will occasionally visit a work colleague, but he stated he rarely goes out. In his free time, he enjoys computer games and tinkering with woodworking." As to occupational and educational history, it was noted that the Veteran had been working a job in security since January 2008. It was noted that he "works full time on a rotating schedule (days and shifts). He stated this is the best fit job for him so far. He doesn't have to deal with customers and his colleagues are all combat veterans. 'Expectations are not that high.'" As to mental health history, it was noted that "sleep has been problematic since his return [from the military]. 'I usually get a good amount of sleep' but he lays there for about 45 minutes and then wakes a couple of times through the night" and that "'[i]n my mind, I'm thinking about nothing.'" Under the behavioral observations section, it was stated that the Veteran's: appearance and hygiene were adequate and he was appropriately attentive and responsive to stimuli. [He] was lucid and fully oriented. Eye contact was good and he was cooperative with the interview process. He presented as guarded, with a mildly anxious mood with congruent affect. [His] speech was normal in rate and rhythm. His thought processes were well organized and he denied any history of psychosis. He also denied any history of suicidal or homicidal ideation. Attention and memory appear intact. The examiner identified various symptoms as applying to the Veteran's depressive disorder. Symptoms were noted from the 30 percent rating criteria under the General Formula of depressed mood, anxiety and suspiciousness. Symptoms were not noted from the 50, 70 or 100 percent rating criteria under the General Formula. It was also noted that psychological testing was conducted and that the results suggested that the Veteran "experiences a mild degree of anxiety and depression." The examiner also stated that the Veteran "endorses some symptom of PTSD, however the number, type, frequency, intensity, and cluster of symptoms endorsed do not warrant a diagnosis of PTSD. His symptoms do, however, appear to result in mild impairment and are more consistent with a diagnosis of Unspecified Depressive Disorder with anxious distress." Second, the Veteran was afforded a VA examination in May 2016 and a Mental Disorders DBQ was completed by Dr. P.P. A diagnosis was noted of unspecified anxiety disorder with panic attacks. The examiner noted that the following best summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses: "[o]ccupational 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 Board notes that this level of impairment is outlined in the 30 percent rating criteria under the General Formula. As to social, marital, and family history, it was noted that the Veteran had been married for 16 years. It was noted that the Veteran "described his current relationship with his wife as 'sometimes better than others, over all it's not great. We kind of deal with one another. Room[m]ates would be a better word'" and that "[h]e described himself as 'closed off' and that he has a hard time communicating what he is thinking." It was also noted that "[i]n his free time, he enjoys computer games and no longer tinkers with woodworking. 'I try to read a little bit but find it hard' (to concentrate)." It was further noted that "[h]e has co-workers that he talks to and 'every now and then, 5-6 months, we go and do something.'" It was also stated that the Veteran's relationship with his parents was "'pretty good.'" As to occupational and educational history, it was stated that the "Veteran graduated...a year ago from a BS program in Information Systems and he's a 'natural' with computers." Under the behavioral observations section, it was stated that the Veteran's: appearance and hygiene were adequate. He was oriented to all spheres. His speech was normal in rate and rhythm. His mood was moderately dysphoric with congruent affect. He denied any history of psychosis. He denied any history of suicidal / homicidal behavior or intent. He does not have [suicidal ideation]. His thought processes were linear and there was no evidence of a thought disorder. His attention and memory appeared intact. His insight and judgment are [within normal limits]... Sleep: he tries to go to sleep 9 PM on a work night and gets up at 5 AM. It takes 60-75 minutes to fall asleep and he can't turn off his mind. He starts to worry about anxiety, about his breathing being weird and his body ("things that are probably 100% normal") and stuff that is "unsettling to me." He wakes up now twice during the night and is able to get back to sleep. He feels more comfortable with surroundings at home... Worry: he worries about his family and about health. He states, "I can never relax, and that's a big problem..." Mood / irritability: he gets really angry if he has to repeat himself several times to his wife; then he screams and they have words. He does not get physical but sometimes curses. His anger never gets to the point that she is afraid of him, per [V]eteran. Depression: he sometimes cries if he gets "really upset" but never has trouble getting out of bed. The examiner identified various symptoms as applying to the Veteran's depressive disorder. Symptoms were noted from the 30 percent rating criteria under the General Formula of depressed mood, anxiety, panic attacks that occur weekly or less often and chronic sleep impairment. Symptoms were not noted from the 50, 70 or 100 percent rating criteria under the General Formula. Under the remarks section, the examiner stated "[b]y [the Veteran's] report, his main symptoms have been mood dysregulation (irritability), social isolation, distance in his marriage, low trust, anxiety and panic symptoms with some panic attacks, high tension, discomfort in new situations. He can't ever relax, he keeps to himself, he does not trust people" and the "only reason 'I finished my degree is that I did it on line.' He can't imagine doing an interview and says 'now I have a degree I won't be able to use', bec[au]se he gets 'a little dizzy in a new building.'" The examiner continued that "[i]n reviewing the [Personality Assessment Inventor (PAI)] results of 2014, his [symptom] level would have been better described as 'moderate' than 'mild'" and that "at the present time, the level of impairment seems to be mild to moderate, in that his panic attacks and anxiety interfere with sleep, trust & making friends, engaging in exercise or social activity, seeking different employment that matches his degree, mood & irritability, and getting along with his wife." It was further stated that "[h]is symptoms have never been well controlled by medication and they will result in transient interference while driving, sleeping or working." Third, the Veteran was afforded a VA examination in December 2018 and a Mental Disorders DBQ was completed by Dr. J.O. Diagnoses were noted of unspecified depressive disorder, panic disorder and relationship distress with spouse or intimate partner. Symptoms were noted as attributable to each diagnosis, with "depression, anhedonia, reduced memory/concentration, reduced libido" noted for depressive disorder; "panic attacks several times weekly, elevated baseline anxiety and worry" noted for panic disorder; and "frequent arguing with spouse, facing separation of divorce" noted for relationship distress. The examiner noted that the following best summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses: "[o]ccupational 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 Board notes that this level of impairment is outlined in the 30 percent rating criteria under the General Formula. It was also noted that occupational and social impairment is attributable to each diagnosis as follows: 33 percent each for depressive disorder and relationships distress and 34 percent for panic disorder. As to social, marital, and family history, it was noted that the Veteran was married and that the "marriage is not going well. Having communication issues, there is talk about separation but no papers filed." It was also noted "[n]o friendships, no vets groups, no outside activities...Stressors - marriage, finances, health." As to occupational and educational history, it was stated that the Veteran was working full-time as an informational technology specialist for 14 months. It was further noted "Ok with job, 'It's hard to remember everything'. Works on a team - gets along with them. Writes software...Has to write things, uses post it notes. Makes minor mistakes on the job due to memory." It was also referenced that before this job, the Veteran had worked for 11 years in security. As to mental health history, it was noted "no suicide attempts, has had [suicidal ideation]." Under the behavioral observations section, it was stated that the Veteran: was cooperative and presented with adequate grooming/hygiene, poor eye contact, staring ahead. Speech was normal in rate, tone and volume and veteran appeared stated age. Mood was fair and affect was constricted/mildly an[xi]ous. He presented with linear, coherent and goal directed thought flow without psychosis, suicidality or homicidality. Overall, [V]et is a reliable historian with intact cognition and memory. The examiner identified various symptoms as applying to the Veteran's depressive disorder. Symptoms were noted from the 30 percent rating criteria under the General Formula of depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss, such as forgetting names, directions or recent events. Symptoms were noted from the 50 percent rating criteria under the General Formula of panic attacks more than once a week, flattened affect, impaired judgement and disturbances of motivation and mood. A symptom was also noted from the 70 percent rating criteria under the General Formula of difficulty in adapting to stressful circumstances, including work or a worklike setting. Symptoms were not noted from the 100 percent rating criteria under the General Formula. The examiner also provided clarification as to the Veteran's psychiatric symptoms as follows: Depression - feeling down, uncomfortable, worried. Helplessness, hopelessness - much of the time. Libido - low. Crying spells/easy tearfulness - hides emotions, feels emotionally numb. Anhedonia - wants to stay at home, isolating. Energy - adequate. Appetite - fine, weight gain - 25 lbs in the last year, no exercise. Anxiety/panic attacks - high anxiety, + panic attacks - 3-4 per week. Triggers - "come out of nowhere", when driving or doing nothing. Has heart pounding, not getting enough oxygen. No ER visits. Sleep - receives 6-6.5 hours of sleep, wakes up 2-3 times a night, + nightmares - sometimes military related. Not on meds, takes daytime naps, no [diagnosis] of sleep apnea but says he snores like a freight train. Motivation - anxious when he thinks about the future, is motivated. Memory - poor, writes things down, can recall recent conversations mostly. Forgets to do tasks. Has left garage door open. Judgment - fair, feels frustrated which affects his decision making process. Paranoia/suspiciousness - yes, "I get anxious..thinking of escape". Doesn't trust. Crowds - can be in a crowd but avoids it all costs. No longer goes to concerts. Mood swings - gets easily angry, frustrated. When angry, "I explode", leaves the room and house. + road rage. Violence - denies domestic violence. Psychotic symptoms - denies [auditory/visual] hallucinations. Obsessionality - on the computer 18 hours a day. Hygiene - showers regularly. Goals - wants to get through the next few months, no goals. It was noted under the remarks section that the Veteran's anxiety had progressed to panic disorder and that "[h]e has panic attacks 3-4 times per week." It was also stated that the Veteran's "Panic Disorder is secondary to his Unspecified Depressive Disorder. His Relationship Distress with Spouse or Intimate Partner is secondary to his Unspecified Depressive Disorder, (esp. his mood lability)." The examiner also stated "[c]urrent level of severity - moderate. Vet is experiencing stress in his marriage after being married for 16 years and both are discussing separation/possible divorce," that "[o]n his job as an IT specialist, [V]et is also having concentration and memory dysfunction and he has to write down everything. Vet reports depression, elevated anxiety/worry, panic attacks several times weekly along with sleeping disturbances and mood lability" and that "[w]hen angry, he remarked he 'explodes'. He feels hopeless and helpless much of the time. Vet has limited social contacts and has both social and occupational impairment. He is on antidepressant therapy but not in counseling." Fourth, the Veteran was afforded a VA examination in September 2019 and a Mental Disorders DBQ was completed by Dr. E.S. A diagnosis was noted of unspecified depressive disorder with anxious distress. The examiner noted that the following best summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses: "[o]ccupational 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 Board notes that this level of impairment is outlined in the 30 percent rating criteria under the General Formula. As to social, marital, and family history, it was noted that "[t]he Veteran denies other social interactions besides his wife. Doesn't like too many people at work. Denies keeping in contact with any close friends" and that "[t]he Veteran reports that his relationship with his wife is not good. He feels that they would be divorced if it weren't for her medical issues...Communication has been an issue. 'She wants me to be more communicative and I feel I can't. I've kind of closed myself off to the world." It was also stated that "'[s]ocially[,] I want to be in a completely different career. I've had to change careers because of it (anxiety). I want to change these things but I can't make it happen. It's too uncomfortable." It was also stated that "[t]he Veteran states that he had wanted to be in law enforcement." As to occupational and educational history, it was stated that since his active service "he has done security, management, customer service, software development and IT. He states he hasn't found anything he really feels comfortable in. 'There's always something about the at[]mosphere that doesn't suit me. I keep trying to find something that suits me.'" It was also noted that "[t]he Veteran states that he is currently working at the VA. He has been with them for three months. He states 'it is hard. It's a big learning curve.' He is doing IT work." It was further stated "'[m]y mother encourages me to try for a job that is 100% tele-work but I'm afraid that I would beco[me] totally socially isolated. I just want to feel normal. Comfortable.'" As to mental health history, it was stated "[t]he Veteran states he began treatment a two years ago with a social worker but felt that it made him feel worse. He started a medication but it made him throw up. He denies any current treatment. The [general practitioner (GP)] said the Cymbalta may help his mood also." It was also stated that "[t]he Veteran reports current issues with anxiety most of the time he is not at home. Sometimes he feels anxious even at home. 'I can't interact with people very well'" and "[p]anic attacks. 'The main part will last 30 minutes or so and will feel out of body for an hour or so.' These occur every two days." It was also stated that "[h]e states he had some vague suicidal thoughts a few years ago. He denies current suicidal thinking." It was noted that "[h]e states he is anxious or frustrated 70% of the time. Intrusive thoughts 'sometimes.' typically later at night. States he has a hard time falling asleep. He averages 5.5 to 6 hours of sleep nightly. Every now and then (once every couple of weeks) he will have a nightmare" and that "[h]e notes more triggers when he feels uncomfortable. 'I just don't ever feel like doing anything. I feel like I'm always avoiding the next panic attack or awkward situation. Hopeless.'" Under the behavioral observations section, it was stated that the Veteran "was alert and oriented to person, place and time. No deficits were noted in his memory for details. His affect was appropriate and mood dysphoric. His speech was normal. His eye contact was moderate. He denied auditory and visual hallucinations. The organization of his thought processes appeared logical. He denied suicidal and homicidal ideation." The examiner identified various symptoms as applying to the Veteran's depressive disorder. Symptoms were noted from the 30 percent rating criteria under the General Formula of depressed mood, anxiety and chronic sleep impairment. A symptom was noted from the 50 percent rating criteria under the General Formula of panic attacks more than once a week. Symptoms were not noted from the 70 or 100 percent rating criteria under the General Formula. Fifth, the Veteran was afforded a VA examination in August 2021 and a Mental Disorders DBQ was completed by Dr. B.B. A diagnosis was noted of "Major Depressive Disorder, Recurrent, Moderate, With Anxious Distress." The examiner noted that the following best summarized the Veteran's level of occupational and social impairment with regards to all mental diagnoses: "[o]ccupational and social impairment with reduced reliability and productivity." The Board notes that this level of impairment is outlined in the 50 percent rating criteria under the General Formula. A comment in the diagnosis section stated "Veteran reported he prefers to remain isolated and does not enjoy dealing with people in any situation. He reported disturbances in his moods including 6 month periods of significant depression followed by a few months of mild relief. He stated his self-esteem is low most of the time. He also reported apathy." It was also noted that the Veteran denied suicidal and homicidal ideation and audio and visual hallucinations. As to social, marital, and family history, it was noted that "[t]he [V]eteran reported he is still married to his wife of 19 years...He stated his relationship with his wife is 'not good'...He reported they function more as roommates than romantic partners. The veteran stated he maintains a good relationship with his sister. He reported he doesn't leave the house often." As to occupational and educational history, it was noted that the Veteran "currently works in IT for the VA. He reported he has been in the position for 2 years. He stated he has trouble dealing with others at work and experiences anxiety when dealing with others." It was also noted that the "Veteran stated he earned a bachelor's degree after the service. He reported it took him a few attempts to complete his schooling due to him experiencing difficulty focusing." As to mental health history, it was noted that the Veteran "does not currently engage in [mental health] therapy. He denied taking [mental health] medication." Under the behavioral observations section, it was noted that "[t]he [V]eteran's memory was intact and his mood was euthymic. His thought processes were organized...He was communicative throughout." The examiner identified various symptoms as applying to the Veteran's depressive disorder. Symptoms were noted from the 30 percent rating criteria under the General Formula of depressed mood, anxiety, chronic sleep impairment and panic attacks that occur weekly or less often. Symptoms were noted from the 50 percent rating criteria under the General Formula of panic attacks more than once a week, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. A symptom was also noted from the 70 percent rating criteria under the General Formula of difficulty in adapting to stressful circumstances, including work or a worklike setting. Symptoms were not noted from the 100 percent rating criteria under the General Formula. The examiner also stated under the remarks section that "[a]fter a review of records and today's interview, the examiner determined the veteran meets the diagnostic criteria for Major Depressive Disorder, Recurrent, Moderate, with Anxious Distress. This diagnosis indicates his condition has progressed since his most recent exam (Unspecified Depressive Disorder from 2019)" and that "[t]he [V]eteran's symptoms also lead to an increased level of social/occupational impairment when compared to reported symptoms in 2019. Overall, the [V]eteran's level of social/occupational impairment related to [mental health] symptoms leads to a reduction in reliability/productivity." Also, while the examiner noted that the Veteran was currently working, they also completed a separate Individual Unemployability Statement form. On this form, the examiner marked boxes indicating the following as difficulties for the Veteran due to his mental health diagnoses: individual has difficulty attending to or is easily distracted from the task at hand; individual has significant difficulty functioning around other people, has difficulty functioning as a team member, and feels uncomfortable around others; individual cannot tolerate being around other people in any setting for more than a few minutes; and individual is so depressed that s/he has difficulty sustaining energy and motivation to complete assignments at work. In addition to the VA examinations, also of record are relevant VA treatment records. In general, the VA treatment records noted symptoms of similar severity, frequency, and duration as to those outlined in the DBQs. Certain VA treatment records will be further outlined below. A March 2015 baseline assessment note stated "[r]eported symptoms consistent with: Minor Depression, Mod[erate] to Severe Anxiety." It was also noted that the Veteran stated that his depressive and anxiety "symptoms made it very difficult to do his work, take care of things at home, or get along with others." This note also stated "Work Limitations (scores range from 0-100 and indicate the percentage of time that the patient had difficulties at work in these areas - higher scores indicate greater problems): Output (e.g. handling the workload and finishing work on time): 50%[,] Time management: 50%." An April 2015 initial assessment note included a chief complaint of "I have panic attacks." It was further stated that "V[e]teran said he has anxiety; he said he not good with working or social relationships anymore, always on edge; he said this has been going on for 11 years; he said he has not had any help for these symptoms in the past." It was also noted that the Veteran was in school and working full time. It was additionally stated "I get panic attacks three or four times a week that last about five minutes and come of nowhere; I get a crazy sensation, a wave of energy all over my body; I can be sitting somewhere and all of a sudden I feel like I can't breath[e]." A June 2015 mental health treatment plan note stated "I feel like I can't communicate what I am thinking. I have panic attacks that happen all of a sudden and I start freaking out; I can't breathe, I feel like I am going to die" and that "[w]hen I am still and quiet my mind races, and keeps me from going to sleep. This beats the drive out of me. I am scared to do thin[]gs that are normal. [I]t's hard to build relationships with managerial staff at work." The Veteran participated in individual evidence based cognitive processing psychotherapy (CPT) for seven sessions from June 2015 to August 2015. Notes for these sessions noted that various depression screens were performed, with the results being noted of moderate depression and moderately severe depression. Two July 2015 notes referenced the Veteran's appearance being "somewhat dishevel[]ed" and noted his hair not being combed. One of the same July 2015 notes stated "his affect was blunt, congruent with his reported mood, 'I don't feel anything'" and the other stated that "he had difficulty articulating his feelings, and acknowledged that he is usually anxious and makes a conscious effort not to express his feelings or show emotion." An August 2015 note stated that the "Veteran was appropriately groomed today, and kempt" and that "his affect was both sad and anxious, congruent with his reported mood : 'I am afraid if I express my emotions they will get out of control; I don't like the way I am right now.'" The last session note was from August 2015 and stated "affect was flat, congruent with his reported mood, 'If I reveal any part of myself people will take advantage of me.'" An October 2015 mental health consult stated that the Veteran "[r]eported that he feels anxious most of the time. Stated that he gets anxious when he is away from home or exposed to new situations. Has had panic attacks while driving. Feels that he can't breathe during the attacks" and that he "[d]escribed that he used to having frequent nightmares, which now occur only occasionally; feels emotionally distant from others, including his wife and explained that he actually lost jobs for having a hard time connecting to people and to feeling emotionally numb." It was also stated "[c]omplaints are mood changes, insomnia, sadness, irritability, depression, unusual thoughts, flash backs, nightmares." Upon mental status exam, it was noted for mood "[f]eels anxious most of the time," a constricted range of affect, for memory "[p]roblems recalling due to low attention" and for attention/concentration "[p]oor or limited." A January 2018 primary care note stated "[h]e does report to having [history] of [PTSD], but is not taking medications for this...Other than his controlled [PTSD], he has no other [mental health] concerns today." Upon exam, it was noted for psychiatry "mood and affect appropriate." An assessment was noted of "[PTSD]- chronic and controlled without meds or [mental health management]." A January 2019 primary care note stated that the Veteran "does suffer from [PTSD], anxiety, and depression" and that "[h]e tried ther[ap]y in the past, but it was not hel[]pful for him. He is willing to give it another shot, as hopefully another provider will provide him some benefit in his coping strategies." Upon exam, it was noted for psychiatry "mood and affect appropriate." An assessment was noted of "[PTSD]/anxiety- chronic[,] therapy consult placed." A January 2020 primary care note stated "[d]epression: Stable with Cymbalta 60 mg daily. Still has depressive symptoms but no [suicidal ideation/homicidal ideation]. Feels better than in the past." Under the review of systems (ROS) section, it was stated for psychiatry "no unusual moodiness or sadness" and upon exam, it was noted for psychiatry "normal affect, insight normal." A November 2020 primary care included the same findings upon exam of "normal affect, insight normal." Additionally of record are relevant statements from the Veteran. In this regard, the Veteran provided a detailed October 2013 statement. As to current symptoms, he referenced having nightmares and stated that "my dreams take me back to Iraq far more than I'd like to go." He also stated that "I have an awfully hard time connecting to people now, I just cannot seem to make friends, go out anywhere in a crowd, to be honest a great night for me is being home by myself" and that "I have a hard time in my work environment where it is a very socially interactive, and I cannot interact with people the[] way I would like to." He further stated that "[t]here are numerous job promotions I am eligible to put in for, but the fear of moving up is too great, that would only lead to more interaction with people." He also stated that "I am in a constant state of worry, no matter what I am doing I am always tense, with panic attacks that occur maybe twice a week or some, sometimes more often that last only a few minutes." He also stated "I can barely communicate with my wife, I would like to, but I'm just such an introvert now, I really can't bring myself to reach out to her or anyone really." He further said "I feel like I am always under threat for my safety, no idea why really, just feel that way probably 8 hours of the day" and that " I am more of a numb person now." On the Veteran's March 2015 notice of disagreement (NOD), he stated that "I felt that the disability was rated lower than it should have, and that it should have been one level higher." He noted that the percentage evaluation sought was 50 percent. He also stated that "[t]here was no mention in my claim about the panic attacks I suffer and how they affect my daily life. On a typical week I have 2-4 of these attacks and within the [March 2014 DBQ] I did not see this typed anywhere." He also stated that "[m]y disability can always effect my motivation and mood as well, I rarely leave the house or stive for promotion due to the limitations I have from my mental state." He further stated that "I feel that my relationships were downplayed within the [March 2014 DBQ], I do have great difficulty in establishing and maintaining effective working and social relationships as I told my examiner." He concluded that "I do feel that I am better suited to be rated at the 50% threshold instead of the 30% level." In a July 2015 statement, the Veteran stated regarding his March 2014 DBQ that "[t]here was no mention in my exam about my panic attacks that are frequent in nature and are very limiting, occurring multiple times per week. This disability has severely impacted my social and work life, I have great difficulty managing and maintaining relationships due to this disability." He further stated that "I believe that a rating of 30 percent does not reflect the true nature of my disability." The Veteran also submitted a detailed statement with this July 2016 VA Form 9. He stated, in reference to the May 2016 DBQ, that "I assumed that once I got a new examiner that I would have better luck in the [SOC], but the same exact problems arose." The Veteran continued that "[t]he examiner did not convey the correct information to the rating person...the information I am giving to the examiner is not translating on paper." He further stated that "[m]y panic attacks are an ongoing issue, they are not mild, they do not happen once or less per week...My panic attacks are a crippling reality of my life occurring 3 or 4 times a week, every week." The Veteran also stated that "I have significant occupational and social impairment. I am in a career that I do not want to be because I cannot break out of my comfort zone and work in the field that I would actually desire to" and that "I would rather work in the field I am talented in which is information technology. That field requires a heavy interaction with people, and that is something I cannot do at this point, but hope to be able to one day." He continued that "I also have significant social impairment; I do not have any friends because I never really leave the house. I have reduced contact with my immediate family for the same reasons" and that "[m]y wife and I also have a strain on our relationships and a large part is due to my mental restrictions." He further stated that "I often feel like showing emotion can be used against me, I try to suppress my emotions at every turn. I am in a near constant state of what the VA calls a flattened affect." He also stated that "I have trouble falling asleep every single night. This leads to constant fatigue at work and throughout most other days as well. This leads to an increased rate of forgetting tasks." The Veteran continued that "I keep getting told if I 'have' the above problems I would be in the 50 percent category, and I keep expressing that I do have all of these issues, and I do not understand why it never gets put on paper" and that "[a]ll of the above items I have went over with doctors and social workers at the VA numerous times, but it never gets considered by the raters." The Veteran also submitted a detailed statement in November 2018. He discussed attending counseling sessions at the VA in 2015 and stated that "[a]s the discussions and exercises got more involved with my experiences it really made me feel so much worse on a day to day basis, I couldn't deal with the sessions, my thoughts were dominated day and night with my past experiences, just wasn't something I could continue." He also discussed seeing a psychiatrist in 2015, who prescribed medication, but that such "made me sick to my stomach, dizzy and threw up once." He described seeing the psychiatrist as "a bad experience for me" and stated that "[i]t was already a really bad time for me, I never contacted him again." He continued that "[a]fter 2015, I was able to settle back into just being miserable with the symptoms and problems I was used too, not the constant thoughts I had had in late 2015, mental health treatment at the VA hadn't gone great for me, if anything it made me worse." He further stated that "I decided to change careers the year after that, and leave the military type structure I was in, my wife thought it would be better for me." He also stated that "I went to the local VA to get a provider in my area, and they asked me if I wanted to see mental health, I thought I would give it another try, they said they would call me, but I never heard from them" and that "I am open to trying treatment again I guess, I have a friend that has similar problems I have, and he said it has worked good for him, just hasn't been my experience." The Veteran also submitted a detailed statement in July 2020, following the June 2020 rating decision that assigned a 50 percent rating for a portion of the appeal period, followed by a 30 percent rating. He stated that "I disagree with the outcome of this remand, the problem with the remand is the same problem I had before. The outcome of any evaluation that I have encountered comes down to how in depth the evaluation is." He stated that "[t]he evaluation I had in 2018, the Doctor spent more than an hour with me and made sure she was able to get an accurate assessment of me, that's the first time I have been evaluated in a complete way." The Veteran then outlined the various symptoms noted by the examiner, as discussed above. He then stated "[c]ompare that to my 2019 evaluation where the Dr. spent about 15 minutes with me, and it was fairly obvious she was in a hurry." He concluded that "[m]y health status has remained fairly the same over the past few years, only slightly worse, I did not suddenly get better in late 2019" and that "[t]he difference in the 2 exams is one Dr[.] took the time to get an accurate reflection of my condition and the other Dr[.] spent 15 minutes writing down a few things about me and on to the next person." Analysis As outlined, the Veteran has been assigned a 50 percent rating under DC 9410 for his depressive disorder. The next higher 70 percent rating under DC 9410 and the General Formula is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Upon review, the Board concludes that the severity, frequency, and duration of the symptoms of the Veteran's depressive disorder do not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The Board has considered all the evidence of record and engaged in a holistic analysis in reaching this conclusion. As to the level of occupational and social impairment for the Veteran's depressive disorder, the Board finds highly probative the five DBQs, which were completed by five separate medical professionals in 2014, 2016, 2018, 2019 and 2021. None of the examiners indicated that the Veteran's occupational and social impairment was of the severity contemplated by the 70 percent (or higher) rating under the General Formula. In this regard, the Veteran's level of occupational and social impairment was noted to best summarized by the examiners as corresponding to a 10 percent rating by the 2014 examiner, a 30 percent rating by the 2016 examiner, a 30 percent rating by the 2018 examiner, a 30 percent rating by 2019 examiner and a 50 percent rating by the 2021 examiner. The Board finds highly probative the level of occupational and social impairment noted by the examiners, which were provided following review of the Veteran's claims file and in-person examinations and which directly corresponded to the rating criteria under the General Formula. In addition, the symptoms noted by the various DBQs were primarily example symptoms under the General Formula for the 30 or 50 percent rating criteria. The only example symptom under the General Formula for the 70 percent criteria noted by the various examiners was difficulty in adapting to stressful circumstances, including work or a worklike setting (noted by the 2018 and 2021 DBQs). Based on a holistic analysis and considering the entirety of the Veteran's disability picture, the Board finds that the overall severity, frequency, and duration of the Veteran's depressive disorder symptoms shown during the appeal period were not similar to those associated with the higher 70 percent rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) ("We hold...that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration"). The Board acknowledges that the Veteran has various symptoms associated with his depressive disorder, as discussed in detail above. The Board finds that the overall evidence of record, however, did not indicate that such symptoms more nearly approximate the level of occupational and social impairment contemplated by the next higher 70 percent disability rating. The Board specifically acknowledges that the 2018 and 2021 DBQs identified an example symptom (difficulty in adapting to stressful circumstances, including work or a worklike setting) under the General Formula for the 70 percent rating. While this is an example symptom under the General Formula for the 70 percent rating, the Board finds that the entirety of the evidence did not indicate that the Veteran's depressive disorder symptoms, to include the noted symptom, resulted in the level of occupational and social impairment required for a higher rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013) ("in the context of a 70 percent rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas" and "[t]he 70 percent disability rating regulation contemplates initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation, an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas"); Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) ("VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment"). In this regard, the Board finds highly probative that the examiners who noted the presence of this symptom also noted that the best summary of the Veteran's level of occupational and social impairment corresponded to the 30 percent (2018 DBQ) and 50 percent (2021 DBQ) ratings under the General Formula. These DBQs, overall, included notation as a symptom of depressive disorder one example symptom from the 70 percent criteria under the General Formula, but also the medical professional's assessment of the overall level of occupational and social impairment of the Veteran's depressive disorder as corresponding to the severity identified by the 30 or 50 percent rating under the General Formula. The Board finds highly probative the medical professional's assessment of the severity of the Veteran's occupational and social impairment caused by his depressive disorder. The Board acknowledges the notation on the December 2018 DBQ that the Veteran "has had [suicidal ideation]" and the notation on the September 2019 DBQ that the Veteran "states he had some vague suicidal thoughts a few years ago." Suicidal ideation is an example symptom under the 70 percent criteria of the General Formula. The Board notes that the earlier 2014 DBQ stated that the Veteran "denied any history of suicidal...ideation," that the 2016 DBQ stated that the Veteran "denied any history of suicidal...behavior or intent. He does not have [suicidal ideation]" and that the subsequent 2021 DBQ noted that the Veteran denied suicidal ideation. Moreover, none of the five DBQs noted suicidal ideation as a symptom of the Veteran's depressive disorder. As to the December 2018 DBQ, it was not further explained when such suicidal ideation occurred and the DBQ elsewhere stated "[h]e presented...without...suicidality." This indicated that the reference suicidal ideation occurred at some prior time. The September 2019 DBQ supports that suicidal ideation was present at some earlier time, as the DBQ noted "vague suicidal thoughts a few years ago," without specifying when such occurred, and stated that the Veteran "denies current suicidal thinking." Overall, these notations did not clearly demonstrate the presence of suicidal ideation during the relevant appeal period, as they essentially noted that the Veteran did not have suicidal ideation during the examinations, but that he did at some prior, undetermined time. In any event, even assuming (without deciding) that the Veteran had suicidal ideation at some point during the appeal period, the entirety of the evidence did not indicate that the Veteran's depressive disorder symptoms, to include any suicidal ideation that may have been present, resulted in the level of occupational and social impairment required for a higher rating. In this regard, as discussed above, the Board finds highly probative that the five examiners in this case all noted that the best summary of the Veteran's level of occupational and social impairment corresponded to the 30 percent or 50 percent ratings under the General Formula. The Board also acknowledges that two July 2015 VA treatment records referenced the Veteran's appearance being "somewhat dishevel[]ed" and noted his hair not being combed. Neglect of personal appearance and hygiene is an example symptom under the 70 percent criteria of the General Formula. While acknowledging the July 2015 notes, the Board finds them to be outliers as to the Veteran's hygiene during the appeal period. In this regard, a subsequent August 2015 note from the same provider stated that the "Veteran was appropriately groomed today, and kempt" and the remaining evidence otherwise did not note deficiencies or neglect in the Veteran's hygiene. In this regard, none of the five DBQs noted neglect of personal appearance and hygiene as a symptom of the Veteran's depressive disorder. As such, the frequency, severity and duration of any deficiencies or neglect in the Veteran's personal appearance or hygiene during the appeal period appear to have been minimal. In any event, as outlined in detail, the Board has found that the entirety of the evidence did not indicate that the Veteran's depressive disorder symptoms, to include any neglect of personal appearance and hygiene that may have been present during the appeal period, resulted in the level of occupational and social impairment required for a higher rating. The Board has also specifically considered the Veteran's lay evidence and contentions. The Veteran's lay evidence was outlined in detail above and has been considered in addressing whether a higher rating is warranted. As to the Veteran's contentions, the Board notes that the only specific rating advocated for by the Veteran was a 50 percent rating, which is the rating that has been assigned for the entire appeal period. ¬See ¬¬¬March 2015 NOD (noting that the percentage evaluation sought was 50 percent). The Veteran has not presented any specific contentions or arguments as to why a rating in excess of 50 percent is warranted. The Board also acknowledges the Veteran's statements, outlined in detail above, that, essentially, raised issues with the accuracy and thoroughness of some of the VA exams. In this regard, the Veteran in the March 2015 NOD referenced that panic attacks were not noted by the March 2014 DBQ and that his "relationships were downplayed." He reiterated in a July 2015 statement that the March 2014 DBQ did not mention his panic attacks. In the July 2016 statement accompanying the VA Form 9, in reference to the May 2016 DBQ, that "[t]he examiner did not convey the correct information to the rating person...the information I am giving to the examiner is not translating on paper." In the July 2020 statement, the Veteran stated that "[t]he evaluation I had in 2018, the Doctor spent more than an hour with me and made sure she was able to get an accurate assessment of me, that's the first time I have been evaluated in a complete way" and "[c]ompare that to my 2019 evaluation where the Dr. spent about 15 minutes with me, and it was fairly obvious she was in a hurry." He further stated that "[t]he difference in the 2 exams is one Dr[.] took the time to get an accurate reflection of my condition and the other Dr[.] spent 15 minutes writing down a few things about me and on to the next person." Reviewing the Veteran's statements, he essentially took issue with the 2014, 2016 and 2019 DBQs and seemingly approved of the 2018 DBQ (no Veteran statement addressing the 2021 DBQ is of record). Regarding the Veteran's report that, essentially, these DBQs did not accurately or thoroughly document all of his symptoms, in reaching the conclusion outlined in this decision, the Board has holistically reviewed all evidence of record, to specifically include the Veteran's detailed statements where he reported various symptoms. In addition, the Veteran's July 2020 statement seemingly indicated a satisfaction with the 2018 DBQ. As discussed in detail above, this DBQ identified one example symptom under the General Formula for the 70 percent rating, but otherwise noted that the best summary of the Veteran's level of occupational and social impairment corresponded to the 30 percent rating under the General Formula. As such, even assuming (without deciding) that the 2018 DBQ should be afforded more probative value than the 2014, 2016 and 2019 DBQs, the Board finds that a higher rating is not warranted based on the symptomatology outlined in this DBQ. Overall, while the Board has specifically considered the Veteran's evidence and contentions, for the reasons outlined in detail above, however, the Board finds that a higher rating is not warranted. (Continued on the next page) In sum, the Board finds that the severity, frequency, and duration of the symptoms of the Veteran's depressive disorder do not more nearly approximate occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. As such, the Board concludes that the criteria for a rating in excess of 50 percent for depressive disorder are not met and the Veteran's claim is therefore denied K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoopengardner, 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.