Citation Nr: 21076909 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 10-32 799 DATE: December 28, 2021 ORDER Entitlement to an initial disability rating of 70 percent, but no higher, for depression, not otherwise specified (NOS), is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT Throughout the appeal period, the symptoms and overall impairment caused by the Veteran's service-connected depression, NOS, more nearly approximated occupational and social impairment with deficiencies in most areas, but have not at any time during the appeal period more nearly approximated total occupational and social impairment. CONCLUSION OF LAW Throughout the appeal period, the criteria for an initial disability rating of 70 percent, but no higher, for depression, NOS, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2003 to May 2004 and performed service in the Army Reserve. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that, among other things, granted the claim of service connection for depression, NOS, with an initial evaluation of 10 percent, effective May 3, 2004, the day following separation from service. The Veteran timely appealed the initial evaluation that was assigned. In January 2016, the Agency of Original Jurisdiction (AOJ) increased the Veteran's evaluation for depression, NOS, to 30 percent, effective May 3, 2004, and assigned an evaluation of 50 percent from October 15, 2015. As the Veteran did not indicate satisfaction with these disability ratings, the issue remained on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise). In December 2016, the Board granted an initial disability rating of 50 percent for depression, NOS, prior to October 15, 2015, and denied an initial disability rating higher than 50 percent on or after October 15, 2015. The AOJ implemented the December 2016 Board decision in a December 2016 rating decision, assigning a 50 percent evaluation from May 3, 2004. In September 2018, the Court vacated the Board's December 2016 decision and remanded the case for readjudication consistent with its memorandum decision. The part of the December 2016 Board decision that declined to refer the Veteran's claim for consideration of entitlement to an extraschedular rating was affirmed by the Court. In August 2019, the Board remanded the claim for further development. In December 2020, the Board denied entitlement to an initial disability rating higher than 50 percent. In August 2021, the Court vacated the Board's December 2020 decision that denied entitlement to an initial disability rating higher than 50 for depression, NOS, and remanded the matter for additional development and readjudication in compliance with directives specified in an August 2021 Joint Motion for Remand (JMR) filed by counsel for the Veteran and the VA. Entitlement to a higher initial disability rating for depression, NOS Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). 38 C.F.R. §§ 4.125, 4.130. The Veteran's depression, NOS, is rated under 38 C.F.R. § 4.130, DC 9434, and is rated under the General Rating Formula for Mental Disorders. The Veteran's service-connected PTSD is evaluated at 50 percent from May 3, 2004, the day after his separation from service. As discussed further below, the Veteran is entitled to a uniform 70 percent initial disability rating for depression, NOS. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating is warranted 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. 38 C.F.R. § 4.130. A 70 percent disability 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 worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating is warranted when 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; and memory loss for names of close relatives, own occupation, or own name. Id. Under the General Rating 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). The symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In December 2004, the Veteran reported during a VA examination that he was easily irritated at work and at home with his family, easily distracted with loss of concentration, and anxious. He additionally indicated that he had conflicts with peers, but that no one had ever filed a complaint against him. The VA psychiatrist noted that the Veteran had adequate hygiene, was appropriately dressed, coherent, logical, and had no suicidal ideas or plans. In March 2005, the Veteran told his VA psychiatrist that he had worked as a technician in a VA hospital for the past ten years and lived with his wife and two teenage daughters. He stated that his peers noticed he was absent-minded, that he was having nightmares and sleep disturbance, and was feeling depressed and moody. Mental status evaluation revealed, among other things, depressed mood, psychomotor retardation, adequate hygiene, appropriate affect, intact memory, good insight and judgment, orientation in all spheres, thought process logical, coherent, and goal-directed, intrusive distressing recalls, but no suicidal or homicidal ideation. During a July 2005 VA PTSD examination, the Veteran reported that, after his return from service, he forgot many things, did not recognize people, and was absentminded at work. He also indicated that he had become verbally aggressive at work and with his family. The Veteran underwent a private psychiatric evaluation in May 2006. He reported feelings of insomnia, anxiety, loneliness, irritability, problems with interpersonal relations and his marriage, nightmares, panic attacks, and flashbacks of the Iraq war. In October 2009, the Veteran told his VA psychiatrist that he works close to home and has support from his family. He stated that this was good for him, and he felt no need to socialize. During a March 2010 VA PTSD examination, the examiner opined that the Veteran's mental disorder symptoms were not severe enough to interfere with occupational and social functioning. A mental status evaluation showed unremarkable thought content and process, judgment that understands outcome of behavior, good impulse control with no episodes of violence, normal affect, happy mood, and no suicidal ideation. The Veteran reported being easily irritable at work and with his family, easily distractible with loss of concentration, anxious, and having conflicts with patients and peers at the hospital. However, he indicated that no one had ever filed a complaint against him and that he has never had to discuss this with his supervisor. The Veteran provided a statement in July 2010 noting that he could not tolerate being around people after his return from his deployment to Iraq. He began to have memory problems at home and started having problems at work. The Veteran reported that had an argument with a patient, was out of control, and his temper had changed. In July 2010, the Veteran's wife provided a statement indicating that their marital status had been affected and changed severely because of the Veteran's behavioral patterns, which included irritability, anger, and confusion. She additionally stated that the Veteran endorsed the following symptoms: anger, lack of confidence, inability to concentrate, poor memory, fear, panic, aggressive action, uncontrolled tremors, an inability to withstand pressure or stress, and a withdrawal and loss of interest in sex. In a November 2010 private psychological report, the psychologist noted that the Veteran experienced maladaptive behavior characterized by fragmented sleep with frightening nightmares, mood swings, easy irritability with panic, explosiveness into aggressive action, uncontrolled tremors, and an inability to withstand pressure or stress. The psychologist also noted that the Veteran's wife described the Veteran's affection as numb. The psychologist opined that the Veteran's impairments were affecting his functional capacity for a normal life. In an October 2012 VA treatment note, the Veteran indicated that he was mostly isolated at home. He reported that he gained weight and lost motivation for exercise or leisure activities. The Veteran was well-groomed, did not have panic attacks, did not self-harm, did not have homicidal ideas, was not suicidal or homicidal, and there was no perceptual disorder. In a February 2013 VA treatment note, the Veteran reported that he did not enjoy his job like he used to and did not have any leisure activities. He was in contact with reality and not suicidal or homicidal. In September 2015, a Disability Benefits Questionnaire completed by the Veteran's VA psychiatrist listed symptoms of depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss, and disturbances of motivation or mood. The private psychiatrist described the Veteran's level of functional impairment as occupational and social impairment with occasional decrease in work efficiency and intermittent ability to perform occupational tasks. In January 2019, the Veteran reported that his wife was telling him that he was anxious, and he was having problems getting to sleep. In October 2019, the Veteran's VA psychiatrist found that the Veteran did not have any acute clinical symptoms of depression, was in contact with reality, and did not have any suicidal ideation. The Veteran underwent a VA examination in January 2020. He reported still being married to his wife and having two daughters and three grandchildren. He described his marital and family relationships as "good." The Veteran endorsed that he was still working at the VA clinic and obtained mental health treatment from VA providers. The examiner listed the Veteran's symptoms as including depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of motivation and mood, and flattened affect. He described the level of functional impairment as occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. In May 2020, the Veteran had a telephonic mental health appointment with his private psychiatrist where he reported that he was working from home, denied any depressive symptoms, suicidal ideation, or panic attacks. For the following reasons, the symptoms and impairment of the Veteran's depression, NOS, more nearly approximate the criteria for an initial disability rating of 70 percent, but no higher. Throughout the appeal period, the Veteran endorsed symptoms of irritability at work and home, anger, confusion, distraction with loss of concentration, absent-mindedness, anxiety, conflicts with peers, nightmares, sleep disturbance, depression, forgetfulness, verbal aggressiveness at work and with family, insomnia, loneliness, panic attacks, problems with interpersonal relationships and his marriage, uncontrolled tremors, inability to withstand pressure or sex, withdrawal and loss of interest in sex, mood swings, isolation, numbness, disturbances of motivation or mood, and flattened affect. In addition, the evidence of record shows that, throughout the appeal period, the Veteran experienced occupational and social impairment with deficiencies in most areas. Based on the evidence of record, including the lay and medical evidence of record, the Veteran's symptoms and impairment throughout the appeal period more nearly approximated occupational and social impairment with deficiencies in most areas as required for an initial disability rating of 70 percent. The Veteran is not entitled to a higher, 100 percent disability rating for the appeal period. The evidence of record did not show that the Veteran experienced symptoms such as grossly inappropriate behavior, his thought content did not appear obsessive, delusional, or impaired to reality, he did not experience memory loss for names of close relatives, own occupation, or own name, and he did not show an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene. Thus, the severity, frequency, and duration of the Veteran's depression, NOS, symptoms have not risen to the level contemplated by the 100 percent disability rating. Moreover, the evidence of record reflects that overall impairment did not more nearly approximate total occupational and social impairment. In this regard, the Veteran had relationships with his wife and children and was employed. This reflects that the impairment caused by the Veteran's symptoms did not more nearly approximate the total social impairment required for a 100 percent disability rating. In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). As explained above, the Board has found that that the evidence of record shows that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate) to result in the occupational and social impairment with deficiencies in most areas required for an initial disability rating of 70 percent. 38 C.F.R. § 4.130. However, he did not show symptoms of the type and extent, frequency, or severity (as appropriate) to result in total occupational and social impairment required for the disability rating of 100 percent as he had some social interactions and relationships and was employed, reflecting that his overall level of impairment did not more nearly approximate total occupational and social impairment. Id. For the above reasons, the Veteran's symptoms and impairment throughout the appeal period more nearly approximated occupational and social impairment with deficiencies in most areas as required for an initial disability rating of 70 percent. However, the evidence is neither evenly balanced nor approximately so with regard to whether a rating higher than 70 percent is warranted. Rather, the evidence at this time weighs persuasively against approximation of the total occupational and social impairment required for a rating higher than 70 percent. The benefit of the doubt doctrine, 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3, is therefore not for application as to this claim. Lynch v. McDonough, __ F.4th __, No. 2020-2067, 2021 U.S. App. LEXIS 37312 (Fed. Cir. Dec. 17, 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, Associate 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.