Citation Nr: A21019657 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 190917-32362 DATE: December 9, 2021 ORDER A disability rating higher than 50 percent for depression and insomnia is denied. FINDING OF FACT The Veteran's depression and insomnia results in occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for an initial disability rating higher than 50 percent for depression and insomnia are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from September 1984 to August 1986, and from February 1989 to March 1998. In August 2019, the Agency of Original Jurisdiction (AOJ) granted service connection for depression and insomnia and assigned a 50 percent evaluation. The Veteran timely appealed this decision directly to the Board and requested a hearing with a Veterans Law Judge. Under this option, the Board may only consider the evidence of record at the time of the August 2019 rating decision, as well as any evidence submitted at the hearing or within 90 days thereof. 38 C.F.R. § 20.302. A hearing was provided in August 2021 and a copy of the transcript is of record. The Veteran has not submitted any additional evidence. Increased Rating The Veteran is seeking a disability rating higher than 50 percent for his depression and insomnia. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's depression and insomnia is currently rated as 50 percent disabling under DC 9434. Under the General Rating Formula for Mental Disorders, a 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted for 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); inability to establish and maintain effective relationships. Id. A 100 percent rating 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. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d 112. The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. The current 50 percent evaluation is based almost entirely on findings from an August 2019 VA examination. The Veteran reported that his depression started around 2000 when he realized he needed to depend on his wife due to his physical medical conditions. He has been confined to a wheelchair since 2002. He expressed depression regarding his medical conditions, being confined to a wheelchair, and being dependent on his wife for activities of daily life. He reported that his wife "runs the show" because of his condition and he is "just floating along," suggesting that he is not happy and that she is being unfaithful. He also expressed frustration that his children are reluctant to visit because they do not want to help him. He worries that he is a burden to his family and wonders if it would benefit them to no longer be here, as if he is in everyone's way. The Veteran reported symptoms of crying spells, mood swings, irritability, anger, and frustration about his condition and needing to rely on his wife. He also reported passive thoughts of suicide and death, but adamantly denied plan, intent, or history of gesture. He detailed how his religious beliefs would never allow him to harm himself and was not believed to be at risk of harm to himself. The pain of his conditions also adversely impacts his sleep. After reviewing the Veteran's claims file, his self-reported medical history, and current symptoms, the examiner diagnosed depressive disorder due to another medical condition manifested by occupational and social impairment with reduced reliability and productivity. It was explained that the Veteran's depressive disorder was attributed to his limitations related to having degenerative disc and joint diseases that confine him to a wheelchair and is the direct result of efforts to control/cope with or a direct psychological response to his condition. His reported sleep difficulties are likely related to and subsumed within the depressive disorder, and also secondary to his medical conditions, thereby not warranting separate diagnosis. VA outpatient treatment records dated between 2018 and 2020 show the Veteran continued to struggle with chronic depression and insomnia and was taking prescription medication to manage his symptoms. A major psychosocial stressor involved his coping with increasing episodes of weakness and pain, worsening physical functions, and continued loss of mobility. However multiple mental status examinations show he was cooperative and reasonable. His thought process was linear and logical, and his memory was intact. His speech was normal with no evidence or report of hallucinations and his mood was described as normal with dysthymic affect. The Veteran was oriented to all spheres and judgment and insight were appropriate. Although the Veteran experienced ongoing depression, he consistently denied suicidal ideation, plan, and/or intent and routine assessments show he was at low risk for suicide. Despite questioning thoughts like "why am I still here," the Veteran stated that his religious beliefs help him to commit to not harming himself. Applying the Veteran's psychiatric symptomatology to the rating criteria noted above, the evidence does not support the assignment of a higher evaluation. The record describes a fairly consistent pattern of symptomatology and the VA examiner specifically found that the Veteran's depression and insomnia symptoms result in, at most, occupational and social impairment with reduced reliability, consistent with the criteria for no more than a 50 percent rating. Moreover, the lay and medical evidence does not contain any indication of speech suggestive of disorders of thought or perception, difficulty understanding commands, or significant impairment of memory, judgment, or abstract thinking. To the extent the Veteran believes his suicidal ruminations warrant an increased evaluation, VA treatment records show he consistently denied such thoughts and stated that his religious beliefs prohibited him from acting on those thoughts. While suicidal ideation is obviously a relevant consideration in evaluating the extent of psychiatric disability, it is only one factor and, standing alone, does not demonstrate a disability picture most commensurate with a rating higher than 50 percent. Unlike the situation presented in Bankhead v. Shulkin, 29 Vet. App. 10, 25 (2017), here the Veteran's suicidal thoughts are far from consistent, and are not frequent or severe enough as to approximate the criteria for a higher rating. The Board notes that the Veteran testified at his Board hearing that he believed his unemployability was due in part to his psychiatric disability. This assertion was not made in the context of the instant claim until after the rating action at issue in this case; to the extent it represents testimonial evidence, it can not be accepted in this appeal. To the extent it serves as argument concerning the evidence that can be considered, the Board points out that the VA examiner, after reviewing the Veteran's medical history and evaluating the Veteran, concluded that the Veteran's disability picture for his psychiatric disorder was less than that represented by total occupational and social impairment. This assessment is consistent with the supplementary evidence of record, and the Board finds that the psychiatric disorder does not result in total occupational impairment. Nor does it result in total social impairment, given that despite his complaints concerning his wife and his children, he apparently still maintains a relationship with his family, even if strained. In the end, while the evidence clearly demonstrates that the Veteran's depression symptoms have been continuous, they are not equivalent, in frequency, duration or severity, to warrant the next higher evaluation of 70 percent. See Vazquez-Claudio supra. The preponderance of the evidence is therefore against the claim for an increased rating. See 38 C.F.R. § 5107(b). Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Bryant 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.