Citation Nr: 21075621 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 18-28 184A DATE: December 21, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for major depressive disorder with generalized anxiety disorder is denied. FINDING OF FACT The Veteran's major depressive disorder with generalized anxiety is not manifested by total occupational and social impairment. CONCLUSION OF LAW The criteria for a rating in excess of 70 percent for a major depressive disorder with generalized anxiety, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 2002 to October 2002. Entitlement to a rating in excess of 70 percent for major depressive disorder with generalized anxiety disorder The Veteran contends that his service-connected major depressive disorder disability is worse than contemplated by the currently assigned 70 percent evaluation. After a thorough review of the evidence, the Board finds that an evaluation in excess of 70 percent is not warranted. The Board notes that it previously issued a decision on this matter in June 2019. Since a request for an extension of 60 days to submit additional evidence was pending at the time of the decision, the Board vacated its June 2019 decision pertaining to the increased rating appeal for major depressive disorder in a subsequent 2021 decision, staying the matter for the Veteran to have time to submit additional evidence. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 C.F.R. § 3.102. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The Veteran's major depressive disorder is evaluated under Diagnostic Code 9434. That Code provides a 70 percent rating is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 100 percent evaluation is warranted if there is 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. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to 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 (2002). Accordingly, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the diagnostic code. Instead, VA must consider all symptoms of a Veteran's condition of similar type and degree that affect the level of occupational and social impairment. Id. Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 133637 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. At the March 2016 VA examination, the examiner found the Veteran's overall symptomatology to be productive of occupational and social impairment with deficiencies in most areas, equivalent to a 70 percent disability evaluation. The examiner did not find a history of hallucinations by the Veteran, nor grossly inappropriate behavior; that the appellant was in persistent danger of hurting himself or others; that he had intermittent inability to perform activities of daily living; or that he was disoriented to time or place. The Veteran had been admitted to VA hospital in December 2015 due to suicidal ideation with plan but told the examiner he did not have a plan or suicidal intent. By history, this hospitalization coincided with the Veteran's arrest for wire fraud at his previous federal job from which he had resigned. The examiner reported symptoms including depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment, impaired judgment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, suicidal ideation, and neglect of personal hygiene or appearance. In April 2016, CAPRI records show that the Veteran was taken off suicide high risk flag status. July 2016 CAPRI record shows the Veteran denied suicidal or homicidal ideation and no report of hallucinations. In an August 2016 medical report, the Veteran was described as having difficulty navigating stressful situations. While the Veteran was serving a prison sentence, facility medical records show that he continued with his psychiatric medication. A November 2016 notation states that there were no significant mental health issues observed, nor were any reported by the Veteran. A June 2017 CAPRI report shows no hallucinations with a positive report of suicidal ideation with depression, anxiety, poor sleep and nightmares. A July 2017 buddy statement describes the Veteran as having severe depression, staying in bed for days at a time, having night tremors and weight loss. At the July 2017 VA psychiatric examination, the examiner found the Veteran's overall symptomatology to be productive of occupational and social impairment with deficiencies in most areas, equivalent to a 70 percent disability evaluation. The examiner did not find a history of hallucinations by the Veteran, nor grossly inappropriate behavior; that the appellant was in persistent danger of hurting himself or others; that he had intermittent inability to perform activities of daily living; or that he was disoriented to time or place. The Veteran reported thoughts of suicide without intent as well as being depressed and isolative. The examiner reported symptoms including depressed mood, anxiety, suspiciousness, panic attacks weekly or less often, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The examiner noted that the Veteran met the criteria for PTSD and also had diagnosed major depressive disorder and generalized anxiety disorder. A statement from the Veteran's mother dated October 2017 includes her opinion that the Veteran has symptoms indicative of gross impairment in thought processes or communication, persistent hallucinations, intermittent ability to perform activities of daily living, disorientation to time and place (described as "lost"), and memory loss for names of close relatives (that when his brother phone, he does not recognize them). A January 2018 CAPRI note states that the Veteran complained of poor sleep and that sleep medication was not helping. He reported that his girlfriend's family had called the police on him claiming he was threatening someone with a knife, but the Veteran asserted this was a false accusation. The Veteran reported he enjoyed a recent trip with family. He reported positive for suicidal thoughts without intent or plan, denied self-harm, and denied hallucinations. A February 2, 2018 CAPRI note states that the Veteran reported reduced sleep, but the provider noted that the Veteran seemed well-rested and was off sleep medication. The Veteran reported severe depression, but the provider noted that the Veteran's overall presentation did not coincide with such a report. The Veteran denied suicidal and homicidal ideations. A February 7, 2018 CAPRI note states the Veteran presented with his girlfriend for evaluation. The Veteran reported increased nightmares and complaints of suicidal ideation without plan or intent as well as a cranky or irritable mood and no hallucinations. A February 23, 2018 CAPRI note states that the Veteran explained in detail about his family and financial situations and the stress related to them. The examiner noted there was no indication of cognitive impairment. The Veteran denied suicidal ideation or intent and denied homicidal ideation or intent. The Veteran's caregiver/partner submitted a written statement dated October 2017 in which she describes that the Veteran has poor sleep including screaming and kicking at night. She wrote that the Veteran has mood swings, does not recognize the names of his siblings when they call on the phone, he seemed lost or spaced out, described people "being after him" without knowing who "they" were, that she had to direct the Veteran to perform his needed hygiene and that the Veteran seemed disoriented when out and about. An October 2017 written statement by the Veteran's treating doctor stated that the Veteran was in mental health treatment, had a depressed mood, disrupted sleep, irritability, low energy/drive and that it limited his social and occupational functioning. While the Veteran and his family and friends may believe that his psychiatric symptoms rise to the level of a 100 percent disability evaluation under the VA regulations, as lay persons who do not have the requisite training, they may report the experiences and symptoms they observe but are not competent to provide medical or psychological evaluation of those symptoms as they pertain to the DSM protocol or to VA regulations. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Furthermore, the Board finds that while the family members' statements to VA are explaining their own observations of the Veteran's symptoms, the statements contain some assertions that do not comport with the objective medical evidence of record. The medical evidence of record supports that the Veteran is not hallucinatory, nor has he lost cognitive ability to the extent that he can't recognize family members or is disoriented to time and place. The Board finds that based on the record including, but not limited to, VA examinations, lay statements, other medical provider letters and records, and health treatment records, that the Veteran's acquired psychiatric disorder, when viewed in light most favorable to the Veteran, was not productive of total occupational and social impairment during the appeal period based on the rating criteria. The Board finds that the Veteran's statements about his psychiatric disability symptoms are credible where they are consistent with the overall record. The Veteran's overall record does not demonstrate that his psychiatric symptoms manifest in gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time and place, or memory loss for names of close relatives, own occupation, or own name. Although the Veteran was reporting suicidal ideation intermittently and was admitted to hospital in December 2015, the overall record reflects that the Veteran was not persistently a danger to himself or others. Accordingly, the Veteran's psychiatric disorder does not most nearly approximate the 100 percent disability level. The Board finds that the Veteran's symptoms during the period on appeal most closely approximate the 70 percent disability level, accordingly, as to the appeal for an increased rating in excess of 70 percent during the relevant period, the Board denies the appeal. 38 C.F.R. § 4.7. DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.