Citation Nr: A21020009 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 211101-195931 DATE: December 15, 2021 ORDER Entitlement to an increased disability rating of 50 percent, but not higher, for service-connected major depressive disorder (MDD) is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, throughout the rating period on appeal, the Veteran's MDD more closely approximates that of occupational and social impairment, with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an increased disability rating of 50 percent, but not higher, for service-connected major depressive disorder (MDD) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served in the Army from March 1964 to November 1965. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2020, the Board issued a decision granting the Veteran's service connection claim for MDD. In April 2021, the Agency of Original Jurisdiction (AOJ) issued a rating decision implementing the Board's grant, and assigning a 30 percent rating for the Veteran's MDD, effective June 28, 2016. The Veteran timely appealed the rating assigned in the April 2021 decision under the modernized review system of the Appeals Modernization Act (AMA), requesting Direct Review of the evidence considered by the RO. The Board notes that under Direct Review, the Board may only consider the evidence of record as of the date of the applicable rating decision (April 2021); therefore, any additional evidence submitted after this time will not be considered in this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, multiple (staged) ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. Staged ratings are, however, appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 1. Entitlement to an increased disability rating of 50 percent, but not higher, for service-connected major depressive disorder (MDD). The Veteran's MDD is currently rated as 30 percent disabled throughout the entire appeal period under the appropriate DC 9434, which evaluates major depressive disorder. Under DC 9434, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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. A 70 percent rating is assigned 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 of 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 an inability to establish and maintain effective relationships. The maximum rating of 100 percent 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; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9434. The list of symptoms under the rating criteria above are meant to be examples of symptoms that would warrant the respective 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-42 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that those symptoms have resulted in the type of occupational and social impairment associated with that percentage. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Medical treatment records during the appeal period reflect the Veteran had complaints and treatment for depression, which reflected a normal behavior, speech, and mood, with noted symptoms of sleeping problems, conflicts, extended bouts of sadness, isolation, nightmares, flashbacks, sensitivity to light, crying spells, loss of ability to enjoy, feelings of helplessness and hopelessness, and decreased ability to manage depressive symptoms. The Veteran has denied having any hallucinations or suicidal or homicidal ideations. See CAPRI records. During a February 2020 Board hearing, the Veteran testified to having been depressed since service, however, he still maintains a relationship and communicates with his siblings. See Hearing Transcript, February 2020. In a March 2020 private psychological evaluation, the licensed psychologist noted the Veteran has problems with managing his depression, which includes symptoms of bouts of sadness, hopelessness, crying spells, anhedonia, helplessness, flashbacks, sensitivity to loud noises, isolation, sleep difficulty, changes in appetite, decreased motivation, and the need for occasional reminders to shower and comb his hair. See Private treatment record, March 2020. In lay statements submitted by the Veteran's sisters and wife, they all assert that the Veteran has experienced symptoms of withdrawal, tiredness with little energy, unhappy/overwhelmed feeling with sadness, feelings of being down, loss interest in doing things, and decreased interest and pleasure over time. See Buddy/Lay Statements, February 2020 and March 2020. Based on the above, the Board finds that an increased rating of 50 percent, but not higher, is warranted for the Veteran's MDD during the entire period on appeal. The weight of evidence of record throughout the appeal period is sufficient to meet the criteria for the next-higher 50 percent rating, as the severity of the Veteran's MDD symptoms more closely approximate that of occupational and social impairment, with reduced reliability and productivity, which is commensurate of a 50 percent evaluation under DC 9434. The Board notes that the relevant medical evidence of record, to include VA treatment records and the March 2020 private examination, shows that the Veteran's MDD, during the relevant period, has manifested with symptoms of such severity, frequency, or duration as to warrant a higher 50 percent rating. Specifically, the evidence reveals the Veteran experiences a depressed mood, sleeping issues, disturbances in motivation and mood, and difficulty in establishing and maintaining effective work and social relationships (isolation). In this regard, the Board notes that the evidence is essentially in favor of the higher 50 percent rating, or at the very least, in relative equipoise, and thus, resolving all reasonable doubt in favor of the Veteran, the assignment of a 50 percent rating in this case is warranted; and to this extent, the claim is granted. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). However, a rating in excess of 50 percent is not warranted, as the evidence of record does not reflect the Veteran exhibits occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thinking or mood. In fact, the evidence is to the contrary, as the Veteran's thinking and judgment have remained intact, he maintains normal speech, has consistently denied having any suicidal ideations, and maintains a relationship with his family members (siblings). While the Board acknowledges the private psychological evaluation that notes the Veteran's wife stated she occasionally needs to remind him to shower or comb his hair, a symptom reflective of the maximum 100 percent rating, this singular piece of evidence is heavily outweighed by the record in its entirety that fails to mention the Veteran had any difficulties with performing activities of daily living, such as maintenance of minimal personal hygiene. Additionally, the Board notes that this singular notation would not rise to the level of severity, frequency, or duration to render the Veteran totally occupationally and socially impaired. (Continued on the next page) Therefore, the Board finds that the preponderance of the evidence does not support the assignment of a rating higher than a 50 percent rating in this case. The Board notes that the lay assertions of the Veteran have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran has argued that a higher rating than 50 percent for his MDD is warranted, these assertions are outweighed by more probative evidence provided by the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, his lay statements do not provide any basis upon which to assign any higher ratings. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.