Citation Nr: 21006503 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 14-40 391A DATE: February 4, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for service-connected persistent depressive disorder is denied. FINDING OF FACT Throughout the rating period on appeal, the severity, frequency, and duration of the Veteran’s symptoms has not more closely approximated occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for service-connected persistent depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has uncharacterized active service from June 2007 to August 2007 and honorable service from October 2008 to January 2012. This case is before the Board of Veterans’ Appeals (Board) from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded these matters to the RO for additional development, specifically a new examination that addressed the Veteran’s described symptoms. Finding there has been substantial compliance with the Board’s remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998), the Board may proceed with appellate review. Entitlement to disability rating in excess of 50 percent for service-connected persistent depressive disorder. The Veteran is currently assigned a disability rating of 50 percent for service-connected persistent depressive disorder, effective the date of his original claim, January 3, 2012. The Veteran contends his described symptoms, including panic attacks, depression, relationship difficulties, and chatter in his head, entitle him to a 70 percent disability rating (3/05/2019 Appellate Brief; 11/10/2020 Appellate Brief; 11/19/2014 Form 9; 6/16/2014 NOD). Under the General Formula for Mental Disorders (General 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 issue in this appeal is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating 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; or memory loss for names of close relatives, own occupation or own name. An August 2018 examination noted the Veterans persistent depressive disorder manifested with symptoms of depression, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The examiner opined that these symptoms resulted in 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 medication (8/16/2018 C&P Exam). The December 2019 examiner noted the Veterans weekly panic attacks and anxiety and opined the Veteran's diagnosed persistent depressive disorder was currently mild overall. His anxiety, as seen through a tendency to doubt himself, worrying, and occasional panic attacks, to include times where he has “chatter in his head,” is another manifestation of his general tendency toward anxiety when overwhelmed. These mental health symptoms result in overall mild impairments, mostly social, where he tends to avoid social situations that cause anxiety. His symptoms were assessed to result in 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 medication (12/27/2019 C&P Exam). The December 2019 examiner noted the Veteran was employed and had a girlfriend. He enjoyed working on coding projects, A prior June 2014 examination for another disability indicated the Veteran was employed (12/27/2019 C&P Exam, pg. 4; 6/10/2014 C&P Exam, pg. 3). After review of the evidence of record, the Board finds the Veteran’s overall symptoms, including anxiety, panic attacks, and depression, chatter in his head, and motivation and mood disturbances are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. The Board considered treatment notes between February 2016 and October 2019 that describe the Veteran’s suicide risk as moderate due to long term insomnia. Suicidal ideation was not noted. Notes indicating a moderate suicide risk were generally associated with no show appointments. Medical notes before and since that timeframe indicate panic attacks, anxiety, and depression, but do not include suicidal ideation or other symptomatology resulting in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Loss of interest in programming was noted in some records, while in others it was noted that he would lose sleep at night because he would have creative coding ideas that he would then get up and implement on his laptop. The clinical records thus fail to support a higher rating, particularly when viewed with the totality of the record. In summary, the Board finds, at their most severe, the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity, most closely approximating the level associated with a 50 percent rating. Accordingly, the Veteran’s claim of entitlement to a disability rating in excess of 50 percent for his service-connected persistent depressive disorder is not warranted. The Board has also considered staged ratings but finds no specific period during which the evidence shows symptoms that more closely approximate a higher rating. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers 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.