Citation Nr: A21020522 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210504-157995 DATE: December 27, 2021 ORDER Entitlement to an initial rating in excess of 70 percent for major depressive disorder (MDD) with anxious distress and secondary alcohol use disorder is denied. FINDING OF FACT Since January 28, 2020, the effective date of the grant of service connection, the Veteran's MDD with anxious distress and secondary alcohol use disorder more closely approximated occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood, but was not productive of total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial rating in excess of 70 percent for MDD with anxious distress and secondary alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1990 to March 1999. By way of history, the agency of original jurisdiction (AOJ) issued a May 2020 rating decision denying service connection for MDD. In August 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR) requesting a review of the May 2020 decision. In a January 2021 the AOJ issued an HLR decision granting service connection for MDD with anxious distress and secondary alcohol use disorder, and an initial 70 percent rating was assigned, effective January 28, 2020. The decision considered the evidence of record at the time of the initial May 2020 rating decision. In May 2021, the Veteran timely appealed the January 2021 decision to the Board and selected the evidence review lane. Accordingly, the Board may consider the evidence of record at the time of the May 2020 decision as well as any evidence submitted by the Veteran or his representative within 90 days of filing the appeal. 38 C.F.R. § 20.303. In October 2021 the Veteran's representative filed a motion to advance on the docket, and in December 2021 the Board granted the Veteran's motion. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 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 applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, in increased rating claims, when the factual findings show distinct time periods during which the veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Board has thoroughly reviewed all the evidence in the Veteran's claims file and has an obligation to provide an adequate statement of reasons and bases supporting its decision. See 38 U.S.C. § 7104; Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each piece of evidence, and it should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Id.; see also Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake, 14 Vet. App at 122. Therefore, the Board will summarize the relevant evidence as appropriate, with the below analysis focusing on the most salient and relevant evidence and on what this evidence shows, or fails to show, with respect to the Veteran's claim. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to an initial rating in excess of 70 percent for MDD with anxious distress and secondary alcohol use disorder The Veteran seeks an increased initial rating for his service-connected MDD with anxious distress and secondary alcohol use disorder, which is rated 70 percent disabling effective January 28, 2020. For the reasons specified below, the Board finds that an initial rating in excess of 70 percent for MDD with anxious distress and secondary alcohol use disorder is not warranted. The Veteran's MDD with anxious distress and secondary alcohol use disorder is rated under Diagnostic Code 9434. Pursuant to a General Rating Formula for Mental Disorders, specified in 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 that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting ability to function independently, appropriately, and effectively; impaired impulse control (e.g., unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (e.g., work or work like setting); inability to establish and maintain effective relationships. A maximum 100 percent rating is warranted 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, Diagnostic Code 9432, General Rating Formula for Mental Disorders. The symptoms associated with each rating under the General Rating formula do not constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the appropriate rating of a psychiatric disorder is not restricted to the symptoms set forth in the General Rating formula. See id. When rating a mental disorder, VA 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; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). In other words, VA must engage in a holistic analysis that assesses the severity, frequency, and duration of the signs and symptoms of the psychiatric disability; quantifies the level of occupational and social impairment caused by those symptoms; and assigns an evaluation that most nearly approximates the level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). VA no longer recognizes Global Assessment of Functioning (GAF) scores as an effective method of evaluating the severity of psychiatric disabilities. See 38 C.F.R. § 4.125 (incorporating by reference the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5)). Therefore, the Board will not rely on any GAF scores in adjudicating the present claim. See Golden v. Shulkin, 29 Vet. App. 221, 224-26 (2018). Turning to the evidence of record, February 2020 VA treatment records indicate that the Veteran felt depressed, had a decreased appetite and low energy, experienced trouble concentrating and sleep disturbances, felt like he was in a fog, and had a flat affect and slowed speech. They additionally noted that he still had logical thoughts and good judgement. The Veteran related that he had frequent panic attacks and avoids methods of communication like his phone, mail, or email because he is afraid of receiving bad news. He indicated that he constantly worries and stated that he has had a few episodes of suicidal ideation recently. A February 2020 disability benefits questionnaire (DBQ) by a private psychologist indicated that the Veteran reported that he was blacking out and woke up in his truck, felt out of control as he was shaking and crying and he was scared he was going to do something, had suicidal ideation so he called the VA and was hospitalized in January. He related that still had suicidal ideation as recently as five days ago. The Veteran reported anger and anxiety issues and chronic sleep impairment with infrequent nightmares. He stated he feels dead inside and is afraid of mail and email and feels paranoid throughout the day. The Veteran stated he does not trust people and feels like he lets people down. He related that he has trouble focusing and a lack of motivation. The Veteran stated some days he will not bathe or shower and lays in his room. The February 2020 private psychologist stated that the Veteran had mild memory loss, impairment of short or long term memory, impaired judgement and impulse control, difficulty understanding complex commands, and near continuous panic or depression, and she opined that the Veteran's symptoms fit a disability rating of 70 percent. She indicated that the Veteran did have a few symptoms that were indicative of a 100 percent rating such as intermittent inability to perform activities of daily living including maintenance of minimally personal hygiene, however she opined that overall the Veteran had occupational and social impairment with deficiencies in most areas. A March 2020 statement from the Veteran indicated that after he left the military he carried deep mistrust and paranoia that resulted in poor decisions, difficulty maintaining work relationships, and difficulty adapting to stressful situations. The Veteran stated that in the past two years he has been in a state of continuous anxiety that developed into daily panic attacks and insomnia, and these along with his depression have affected every aspect of his life and caused him to fail in his work and family life. A May 2020 VA examination by a VA psychologist indicated that she reviewed the Veteran's claim file and conducted an interview. She noted that the Veteran's wife and stepdaughter had temporarily moved back to China and stated that the Veteran lived with his parents and was currently working as an engineering independent contractor. The May 2020 VA examiner indicated that the Veteran described interpersonal conflicts throughout his career including conflicts with supervisors that resulted in termination. She noted that the Veteran appeared appropriated groomed, his speech appeared goal directed and linear, and his thought process was intact. The May 2020 VA examiner related that the Veteran endorsed suicidal ideation without plan or intent, and the psychologist indicated that the Veteran was able to manage his own financial affairs. She listed the Veteran's symptoms as including a depressed mood, anxiety, near continuous panic or depression affecting the ability to function independently, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and impaired impulse control. The May 2020 VA examiner opined that the Veteran did not appear to pose a threat to himself or others and had occupational and social impairment with deficiencies in most areas. An April 2021 vocational assessment report by a certified rehabilitation counselor indicated that the Veteran had limited social interaction, avoided crowded areas, became easily irritated and frustrated with others, and tended to isolate. The report noted that the Veteran has 2 to 3 panic attacks per week, anxious thoughts, intrusive thoughts, impaired focus, and was hypervigilant. The April 2021 report additionally indicated that the Veteran was depressed, experienced lack of motivation, spent most of his time in bed, had trouble sleeping, and found basic household chores difficult due to his fatigue, impaired concentration, and lack of motivation, but he was able to shower and change his clothing. The April 2021 certified rehabilitation counselor stated that the Veteran would forget to refill his medications and forget dates of medical appointments and indicated that he could prepare meals in the microwave or with short preparation requirements. He stated that the Veteran was able to drive but limits his driving due to the risk of experiencing a panic attack while driving. A May 2021 VA examination by a VA psychologist indicated that she reviewed the Veteran's claim file and conducted an interview. She related that the Veteran struggles with depression, fatigue, lack of sleep, impaired concentration, irritability, panic attacks, and relationship issues. The May 2021 VA psychologist stated that the Veteran had a history of suicidal ideation but no current plan. She indicated that the Veteran had a restricted affect but an intact thought process, no hallucinations or delusions, and good judgement and insight. The May 2021 VA psychologist indicated that the Veteran could manage his own finances. She indicated that the Veteran's wife and daughter returned from China in December 2020 and the Veteran currently lived with them and with his parents. The May 2021 VA examiner assessed the Veteran as presenting a low acute suicide risk and indicated that he experienced occupational and social impairment in most areas. A July 2021 statement by the Veteran indicated that he has not earned any income since January 2020 because he has experienced significant difficulties completing bid documentation and working on the computer due to his service connected disabilities. He stated that over the past two years he has been in a state of continuous anxiety that has led daily panic attacks and insomnia. The Veteran stated that his anxiety, depression, and insomnia has caused him to fail in his work and family life. After careful review of the above medical and lay evidence, the Board finds that the preponderance of the evidence weighs against assigning an initial disability rating in excess of 70 percent for the Veteran's MDD with anxious distress and secondary alcohol use disorder. In making this finding, the Board has considered the rating criteria in the General Rating Formula for Mental Disorders not as an exhaustive list of symptoms, but as examples of the type and degree of the symptoms, or effects, that would justify a particular rating. The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assignment of a higher rating. Mauerhan, 16 Vet. App. at 436. The evidence of record shows that the Veteran's MDD with anxious distress and secondary alcohol use disorder has manifested primarily by symptoms such depression, suicidal ideation, anxiety, irritability, anger, neglect of personal appearance, chronic sleep impairment, panic attacks, hypervigilance, avoidant behavior, constricted affect, difficulty in establishing and maintaining effective work and social relationships, memory loss, and disturbances of motivation and mood. This symptomatology more nearly approximates occupational and social impairment with deficiencies in most areas, the criteria for a 70 percent rating. The Board notes that the next higher rating of 100 percent requires total occupational and social impairment. However, the preponderance of the evidence of record does not indicate that the Veteran has exhibited at any time during the relevant period symptoms of the type and degree required for a total, 100 percent rating. These symptoms include: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; memory loss for names of close relatives, own occupation, or own name, or more severe symptomatology such as to warrant a finding of total occupational and social impairment. See Bowling v. Principi, 15 Vet. App. 1 (2001); Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The Board finds that neither the delineated symptoms nor comparable symptoms are shown to be characteristic of the Veteran's MDD with anxious distress and secondary alcohol use disorder. Collectively, the Board finds that the psychiatric symptoms shown do not support the assignment of a 100 percent rating. The Board recognizes that it must look at the evidence of record holistically to analyze the severity, frequency, and duration of the signs and symptoms of the Veteran's MDD with anxious distress and secondary alcohol use disorder determine the level of occupational and social impairment caused by those signs and symptoms. See Bankhead, 29 Vet. App. at 22. As described above, the Veteran has consistently endorsed symptoms of the type and degree most consistent with occupational and social impairment with deficiencies in most areas. Therefore, the Board does not find that the Veteran's overall disability picture more nearly approximates the criteria for total occupational and social impairment. In reaching the above conclusion, the Board acknowledges the Veteran's belief that he is entitled to an initial increased rating for his service-connected MDD disorder with anxious distress and secondary alcohol use disorder. The Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing psychiatric symptomatology. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); see also Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his psychiatric symptoms are of sufficient severity to warrant a higher rating under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability rating, and therefore, accords the objective medical findings greater weight than subjective complaints of increased symptomatology. Finally, the Board does not dispute that the Veteran's MDD with anxious distress and secondary alcohol use disorder causes him significant distress and impairment in social, occupational, or other important areas of functioning. However, the Veteran is compensated for this impairment with a 70 percent disability rating. The Board must assign a rating based on a cumulative review of the medical and lay evidence of record, which, in this case, does not show a disability picture that more nearly approximates total occupational and social impairment. Accordingly, the Board finds that the preponderance of the evidence is against finding that an initial rating in excess of 70 percent for the Veteran's MDD with anxious distress and secondary alcohol use disorder. Therefore, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ahuva D. Sunshine 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.