Citation Nr: 21007380 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 16-08 705 DATE: February 9, 2021 ORDER Entitlement to a 50 percent rating for major depressive disorder, effective January 23, 2011, is granted. Entitlement to a rating in excess of 50 percent throughout the appeal period for major depressive disorder is denied. FINDINGS OF FACT From January 23, 2011, the Veteran’s service-connected major depressive disorder has resulted in occupational and social impairment with reduced reliability and productivity without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no higher, for major depressive disorder, effective January 23, 2011, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for a disability rating in excess of 50 percent for the entire appellate period 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 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1968 to September 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in July 2018, when it was remanded for further development. In addition, the Veteran was granted a total disability rating based on individual unemployability (TDIU) for the entire appeal period in an April 2020 rating decision. As such, the issue of TDIU is no longer on appeal. Increased Rating Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes (DCs) identify the various disabilities. See generally 38 C.F.R. Part 4. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, which is known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In regards the psychiatric disorders, the United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather, “serve as examples of the type and degree of symptom, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas;” that is, “the regulation . . . requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vasquez-Claudio, 713 F.3d at 117-18. Further, when evaluating a mental disorder, 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(a). The Board must also “assign an evaluation 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 examination.” Id. Reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3 The Veteran filed for an increased rating in January 2012. The Board notes that when dealing with an increased rating claim, the appropriate period on appeal dates to one year prior to the date of the Veteran’s claim. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Here, the Veteran applied for increased ratings on January 23, 2012. As such, the appeal period for the issue before the Board for an increased rating is January 23, 2011. The Veteran’s major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. Under this code, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). 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; disturbances of motivation and mood; and, difficultly 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 worklike setting); and inability to establish and maintain effective relationships. Id. During the appeal period, beginning one year prior to the Veteran’s increased rating claim (January 23, 2011), the Veteran underwent four VA examinations. The January 2011 VA examination showed that the Veteran was on medication for his anxiety and depression symptoms, which included irritability, sleeping disturbances, sadness, and episodes of crying spells. The Veteran’s mood was described as mildly depressed with no delusions or hallucinations, no inappropriate behavior, no obsessive rituals, and no suicidal or homicidal ideation. The Veteran also displayed average intelligence, attention intact, cooperative attitude, appropriate affect, normal memory, ability to manage financial affairs, and orientation as to person, time and place. Although the Veteran did not report panic attacks during this examination, VA psychiatric treatment notes from January 20, 2011, show that he reported experiencing panic attacks and a relapse of depressive symptoms, including episodes of anxiety, shortness of breath, chest oppression, dizziness, and nausea. He further expressed concerns about his symptoms affecting his family. VA medical records from 2012 to 2015 consistently note panic attacks as a symptom and diagnosis and indicate a worsening of the Veteran’s anxiety and depressive symptoms. For instance, in April and July 2013, the Veteran reported increased anxiety, poor sleep patterns, difficulty managing stressors and was experiencing in exacerbation in his symptomatology, including irritability, anger, and restlessness. The Veteran also continued to receive treatment via medications and psychotherapy throughout the appeal period. Based on the foregoing, the Board finds that a 50 percent evaluation is warranted for the Veteran’s major depressive disorder, effective January 23, 2011, as his symptoms more nearly approximated occupational and social impairment with reduced reliability and productivity during this time. This is shown by a worsening of the severity, frequency and duration of the Veteran’s symptoms, as well as the impact of these symptoms on his personal and occupational relationships and daily functioning. However, the Board finds that a rating in excess of 50 percent throughout the appeal period is not warranted. A November 2011 VA examination provided pursuant to a TDIU claim does not indicate a worsening of the Veteran’s symptoms and shows findings consistent with and contemplated by the criteria of a 50 percent rating. Furthermore, a January 2016 VA examination notes symptoms such as a depressed mood, anxiety, sleep impairment, flattened affect, and disturbances in mood and motivation. A July 2018 VA examination shows the Veteran reported the same symptoms as those reported during the January 2016 examination, with no signs of worsening. The VA examinations throughout the record also note that the Veteran is able to take care of his financial affairs and activities of daily living. The Veteran also consistently denied suicidal ideation and delusions or hallucinations; his speech was coherent, and attitude was cooperative during the examinations. Moreover, his thought processes were logical, relevant and coherent, and there was no evidence of judgment or cognitive deficiencies. The VA examiners also consistently noted adequate hygiene, orientation as to all spheres, and attention and concentration were intact. In addition, the Board notes that there are no VA treatment records or private medical evidence submitted by the Veteran that would support a rating in excess of 50 percent throughout the appeal period. The Board finds that the Veteran’s symptomatology during this period is contemplated in the 50 percent rating, and his symptoms during this period did not result in occupational or social impairment with deficiencies in most areas. Therefore, the Board finds that, in the absence of more severe symptomatology more nearly approximating a 70 percent rating during the period from January 23, 2011, the Veteran is entitled to a 50 percent rating, but not higher, for his major depressive disorder. This determination represents a partial grant and a partial denial, and this case raises no additional issues on appeal. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, Associate 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.