Citation Nr: A21020160 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 200511-82952 DATE: December 17, 2021 ORDER An initial rating of 40 percent, but no higher, for the service-connected major depressive disorder (MDD) with anxious distress (also claimed as anxiety condition and PTSD) for the period on appeal before January 8, 2020, is granted. A rating in excess of 40 percent for MDD for the period on appeal from January 8, 2020 and thereafter is denied. FINDINGS OF FACT 1. Service connection for the Veteran's MDD was previously established on the basis of aggravation of nonservice-connected disability by the Veteran's service-connected back disability. 2. The Agency of Original Jurisdiction (AOJ) established a pre-aggravation baseline level of severity of 30 percent for the Veteran's MDD based on symptoms of longstanding depression, irritability, and sleep impairment. 3. For the period on appeal before January 8, 2020, the Veteran's service-connected MDD was aggravated to the level of impairment more nearly approximating occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood. Total occupational and social impairment was not shown at any time prior to January 8, 2020. 4. Following the deduction of the pre-aggravation baseline rating of 30 percent, an initial aggravated 40 percent disability rating, but no higher, is warranted for the period on appeal prior to January 8, 2020. 5. For the period on appeal from January 8, 2020, the Veteran's service-connected MDD was not aggravated to the level of a total social and occupational impairment. As such, an aggravated disability rating in excess of 40 percent is not warranted for the period on appeal from January 8, 2020 and thereafter. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, but no higher, for MDD have been met for the period on appeal prior to January 8, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.310(b), 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a rating in excess of 40 percent have not been met for the period on appeal from January 8, 2020 and thereafter. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.310 (b), 4.1, 4.3, 4.7, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 15, 1990 to November 27, 1996. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from an April 2020 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision, inter alia, granted service connection for MDD with anxious distress (also claimed as anxiety condition and PTSD) with an aggravated initial evaluation of 0 percent effective August 10, 2010, 20 percent from May 8, 2013, and 40 percent from January 8, 2020. Service connection was granted based upon a finding that the Veteran's nonservice connected acquired psychiatric disability was aggravated beyond its natural progression by the Veteran's service-connected disabilities. The baseline of severity was established to be 30 percent. This decision constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. Discussion Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In his May 2020 VA Form 10182, the Veteran asserts that he his nonservice-connected MDD was originally rated as 30 percent disabling, and that as a result, he should be awarded at least a 30 percent disability rating for the period on appeal prior to January 8, 2020, and higher than 40 percent thereafter. Pursuant to the April 2020 rating decision, the Veteran was assigned an initial noncompensable rating for his service-connected MDD from August 10, 2010, a 20 percent aggravated rating from May 8, 2013, and a 40 percent aggravated rating from January 8, 2020. 38 C.F.R. §§ 3.310(b), 4.130, DC 9434. Service connection was established on the basis of aggravation of the Veteran's nonservice-connected MDD pathology by the Veteran's service-connected back disability. Specifically, the January 2020 VA examiner opined that it is at least as likely as not that the Veteran's MDD was aggravated beyond its natural progression due to pain from his service-connected back and knee issues. VA regulations provide that for service connection claims that are granted based on aggravation of a nonservice-connected disability by a service-connected disability, VA must determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 C.F.R. Part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease from the current level. 38 C.F.R. § 3.310(b). In other words, when the Veteran was granted service connection for MDD, he was only compensated for the increase in severity caused by his service-connected back disability. To determine the appropriate compensation rating assignments for disabilities which have been aggravated, the baseline level of severity must first be determined. In this case, the AOJ determined that the Veteran's MDD was 30 percent prior to aggravation. This coincides with the Veteran's contention that his nonservice-connected disability was originally rated as 30 percent disability. Next, the baseline rating (in this case 30 percent) is used to offset the degree of severity shown in the post-aggravation periods on appeal, to distinguish the nonservice-connected pre-aggravation impairment from the aggravated severity of impairment deemed to be service-connected. Simply put, the Veteran's overall disability rating is determined, the pre-aggravation baseline percentage is subtracted, and the Veteran is assigned the remainder, which is the aggravated disability rating. As previously noted, the Veteran's MDD has been assigned the following ratings: noncompensable from August 10, 2010; 20 percent from May 8, 2013; and 40 percent from January 8, 2020. 38 C.F.R. §§ 3.310(b), 4.130, DC 9434. These AOJ assigned the ratings following the subtraction of a 30 percent baseline severity rating. As with other psychiatric disorders, the criteria for rating MDD are based on the General Formula for Mental Disorders, found at 38 C.F.R. § 4.130. Pursuant to the General Rating Formula, a noncompensable rating is assigned for a mental condition that has been formally diagnosed, but symptoms of which are not severe enough to interfere with occupational and social functioning or to require continuous mediation. A 10 percent rating is assigned where there is occupational 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 continuous medication. A 30 percent rating is assigned where there is 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 evaluation is warranted where 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; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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 inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires 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. Ratings assigned under the General Formula for Mental Disorders must be based on a holistic analysis that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10 (2017); 38 C.F.R. § 4.130. The symptoms listed in the General Rating Formula are examples, not an exhaustive list and it is not required to find the presence of all, most, or even some of the enumerated symptoms. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate rating to be assigned for a service-connected mental disorder, the focus is on how the frequency, severity, and duration of the symptoms affect the Veteran's occupational and social impairment, rather than on an absence of particular symptoms listed in the schedular criteria. Vazquez-Claudio v. Shinseki, 713 F. 3d 112 (Fed. Cir. 2013). The Board must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. While VA considers the level of social impairment, it shall not assign an evaluation based solely on social impairment. Id. In an August 2010 statement, the Veteran indicated that he has become more depressed because he cannot stand or walk, thus limiting the activities with his children. The Veteran conveyed that he felt that he had become less of a parent when his children requested to play or requested forays to the amusement park. The Veteran reported that his pain dashed his ability to engage in these interactions with his children. In January 2011, the Veteran underwent a VA examination. A clinician provided a diagnosis of MDD. The Veteran described a longstanding history of stressors, including the death of his parents, witnessing his father die of cancer while he was in the military, and depression starting in the late teens and early 20s. He reported frequent irritability and problems controlling anger. The clinician indicated that Veteran's psychosocial functioning was adequate. The Veteran's current symptoms included depression; sadness; low energy; not being interested in things previously enjoyed; low appetite; irritability; occasional poor sleep; and being easy provocation. The Veteran reported that these symptoms were present 50 percent of the time. The VA clinician noted that the Veteran's episodes of anger and irritability were closely linked to various stressors, and not part of an underlying primary anxiety disorder. The various stressors included the Veteran's cancer diagnosis; not being given an opportunity to process the death of close family members (with the Veteran reporting seeing images of deceased family members); unemployment; and chronic pain. The Veteran reported that when he worked, he generally got along with his coworkers and only had a problem with one supervisor. The Veteran first sought mental health treatment in October 2010, when his MDD did not cause full occupational impairment. The Veteran's mental health symptoms were transient or mild, decreasing work efficiency and ability to perform occupational tasks only during periods of significant stress. In a September 2011 VA mental health note, a clinician indicated that the Veteran participates in psychotherapy targeting symptoms of generalized depression with tension, anger, and irritability. The Veteran discussed his father's death. His grooming and hygiene were adequate; his mood was okay and appropriate. The Veteran was cooperative, pleasant, engaged in conversation, tearful, and making good eye contact. Moreover, the Veteran showed full orientation with good thought process and moderate-to-good self-awareness. The Veteran's speech was appropriate. Other VA treatment notes from this timeframe contain similar psychometric findings. In a December 2011 lay statement, f M.G., the Veteran's friend, indicated that the Veteran had been diagnosed with a knee disability, which causes constant pain. M.G. added that the Veteran's pain causes him both symptoms of anger and symptoms of sadness. The record of evidence includes similar statement from other lay informantsall to the effect that they believed that the Veteran suffered from mental health symptoms since service, and that his pain limits him in his daily life routine, which, in turn, causes more severe mental distress. In a March 2013 VA mental health note, a clinician indicated that the Veteran participated in outpatient therapy targeting symptoms of anger management in context of psychosocial stressors. The Veteran discussed his personal stressors, including the recent sudden death of a friend. The Veteran also discussed improvement in his symptoms and denied current problems controlling his anger. He received a follow up two months later and his mental health exam results were much the same. In a May 2016 VA treatment note, a clinician indicated that the Veteran was regularly participating in anger management group therapy. The clinician reported that the Veteran was an active participant, without demonstrating distress. In a January 2017 VA psychology treatment note, a clinician indicated that the Veteran sought outpatient services. The clinician reported a medication roster of Risperdal, Effexor, lorazepam, and trazodone for mood symptoms. The Veteran reported that his status was fair. He reported periods of depression and anxiety, citing family stressors. He also reported chronic pain, which exacerbated his depressed mood. Anger issues affected his family interactions and he indicated that he might requiring marriage counseling. The Veteran continued to endorse moderate depressive mood symptoms, with somewhat improved sleep. The Veteran denied problems with interests, memory, concentration, feelings of guilt, or feelings of hopelessness. The clinician reported that the Veteran's energy level was good as was his appetite. The Veteran's mood was fair and his speech was normal. He denied mania. He endorsed mild anxiety, restlessness, edginess, and being easily fatigued. The Veteran reported intermittent nightmares and flashbacks, admitting to hallucinations and delusions. The clinician opined that the Veteran complied with his medication roster. In January 2020, the Veteran underwent a VA examination. A clinician provided a diagnosis of MDD with anxious distress. The clinician indicated that the Veteran's back, knee, and hip pain disabilities were relevant to understanding or management of the Veteran's mental health disorder. The Veteran was in his third marriage in 4 years. While he used to go out with his wife, he now mostly stayed at home due to lack of interest and a desire not to be around people. The VA clinician thoroughly summarized the Veteran's records. The Veteran's symptoms included depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances, including work or a worklike setting. The Veteran was fairly groomed and casually dressed, displaying fair eye contact. He was cooperative, with normal speech and congruent mood. While the clinician reported that the Veteran was depressed, the clinician also reported normal thought process, insight, and judgment. The Veteran denied suicidal and homicidal ideations. He reported depressed mood most days with low energy. He reported anxiety when he was other people and therefore usually avoided such. He also reported irritability. The Veteran was capable of managing his own financial affairs and he regularly completed his daily activities. The VA clinician concluded that the Veteran's MDD manifested in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Also, the VA clinician concluded that the Veteran's chronic pain caused disturbances in motivation and mood, as evinced by his service treatment records. And, finally, the VA clinician indicated that the Veteran's MDD was exacerbated beyond its natural progression by his back and leg pain. Based upon review of the entire record, the Veteran's overall disability picture more nearly approximates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, for the period on appeal before January 8, 2020. However, the weight of evidence fails to show total social and occupational impairment shown at any point during the period on appeal. The evidence is summarized above. For the period prior to January 8, 2020, the most probative evidence of record shows that the Veteran's MDD manifested in symptoms such as depression; anxiety; chronic sleep impairment; periods of stress; exacerbated mood symptoms; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; isolation; and occasional visual hallucinations (the Veteran reported seeing his deceased family members). These symptoms are of the severity and frequency more nearly approximate this contemplated by a 70 percent rating. Pursuant to 38 C.F.R. § 4.126, the Board has considered the overall assessment of the Veteran's disability, not merely the clinical impressions at the time of the select few VA examinations. While the record shows isolated periods in which the Veteran's symptoms were improved, particularly during times that the Veteran participated in regular psychotherapy and medication management, the Veteran's overall symptoms remained constant and did not show sustained improvement for the period on appeal prior to July 8, 2020. For example, during the January 2011 VA examination, the Veteran reported his mental health symptoms being present 50 percent of the time. He also reported seeing deceased family members and experiencing bouts of mood swings and anxiety. Throughout the Veteran's VA treatment records, he reported experiencing mood disturbances and increased stress and anxiety due to stressors, including the pain for his service-connected back disability. In essence, for the period on appeal prior to January 8, 2020, the psycho-medical evidence of record reflect that the Veteran's symptoms waxed and waned from one day to the next; however, the Veteran's overall disability picture manifested by symptoms of such type, severity, and frequency as to more nearly approximate the criteria for a rating of 70 percent. For the same period on appeal, the Veteran's symptoms and overall level of impairment have not more nearly approximated the total occupational and social impairment required for the next higher rating of 100 percent. The Veteran continued to stay oriented, maintained relationships with family. He did not suffer from impaired judgment, psychosis, suicidal or homicidal ideations. He was deemed able to manage his own finances and kept up with his hygiene. He was also able to complete his daily tasks. While the Veteran reported being isolated, he maintained a relationship with family and friends. Most importantly, the Veteran stayed compliant with his treatment. Thus, the probative evidence of record shows that the Veteran's symptoms did not present a total social or occupational impairment. Although the overall disability picture reflects deficiencies in most areas, the Veteran has, in essence, remained in touch with reality, continued to take his prescribed medications, and participated in treatment throughout the appeal period. Consequently, an holistic Bankhead analysis suggests that the Veteran's degree of occupational and social impairment manifested through symptoms of such type, severity, and frequency as to more nearly approximate the criteria for a rating of 70 percent. Additionally, staged ratings are not warranted for this period on appeal as the overall disability picture has been relatively consistent. As the Veteran's overall impairment was determined to be 70 percent, the 30 percent baseline aggravation percentage must be subtracted. Therefore, for the period on appeal prior to January 8, 2020, the Veteran's MDD is assigned a rating of 40 percent, but no higher. For the period on appeal from January 8, 2020 and thereafter, the evidence does not show total occupational and social impairment. As previously noted, the Veteran continued to stay oriented, maintained relationships with family, did not suffer from impaired judgment, psychosis, suicidal or homicidal ideations, was deemed able to manage his own finances, kept up with his hygiene, and was able to complete his daily tasks. Consequently, an holistic Bankhead analysis suggests that the Veteran's degree of occupational and social impairment manifested through symptoms of such type, severity, and frequency as to more nearly approximate the criteria for a rating of 70 percent. Thus, the most probative psycho-medical evidence of record shows that the Veteran's symptoms did not present a total social or occupational impairment. Although the overall disability picture reflects deficiencies in most areas, the Veteran has, in essence, remained in touch with reality, continued to take his prescribed medications, and participated in treatment throughout the appeal period. Accordingly, total occupational and social impairment has not been demonstrated for the period on appeal from January 8, 2020 and thereafter, a rating in excess of 40 percent for service-connected MDD is not warranted. (Continued on the next page) Accordingly, for the period on appeal from January 8, 2020, an rating in excess of 40 percent for MDD is not warranted. B. J. KOMINS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kseniya Kuksova 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.