Citation Nr: 21010379 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-31 051 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 30 percent prior to October 26, 2020, and in excess of 70 percent thereafter, for service-connected unspecified depressive disorder with anxious distress is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. For the period on appeal prior to October 26, 2020, the Veteran’s unspecified depressive disorder with anxious distress manifested as, at most, 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 symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships. 2. For the period on appeal from October 26, 2020, the Veteran’s unspecified depressive disorder with anxious distress has not manifested as total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to October 26, 2020, the criteria for a rating in excess of 30 percent for unspecified depressive disorder with anxious distress have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.126, 4.130, Diagnostic Code (DC) 9435. 2. Since October 26, 2020, the criteria for a rating in excess of 70 percent for unspecified depressive disorder with anxious distress have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.126, 4.130, DC 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from January 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a June 2016 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). In an April 2020 decision, the Board previously remanded the issues on appeal to the AOJ for further development in accordance with an October 2019 Joint Motion for Remand (JMR) agreed to by the parties before the Court of Appeals for Veterans Claims (Court). After further development, the matter has been returned to the Board for review. 1. Entitlement to a rating in excess of 30 percent prior to October 26, 2020 and in excess of 70 percent thereafter for an unspecified depressive disorder with anxious distress The June 2016 rating decision on appeal granted the Veteran entitlement to service connection for an unspecified depressive disorder with anxious distress, assigning a rating of 30 percent from his November 2011 date of claim. The Veteran appealed the disability rating of 30 percent. As noted above, the Board remanded the matter for further development in accordance with an October 2019 JMR. The Veteran was afforded a new VA psychological examination and a subsequent October 2020 rating decision granted him a rating of 70 percent for his depression with anxiety, effective October 26, 2020, the date of his VA examination. Therefore, the issues before the Board are entitlement to a rating in excess of 30 percent prior to October 26, 2020 and in excess of 70 percent thereafter. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim for an original or an increased rating remains in controversy when less than the maximum available benefit is awarded). Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C. § 5107(b). The Veteran’s depression with anxiety has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9435. Under this Formula, a 30 percent rating is warranted when 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; and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted when 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 often 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. Id. A 70 percent rating is warranted when 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); inability to establish and maintain effective relationships. Finally, a 100 percent rating is warranted when there is 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. Id. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder’s primary focus in determining the level of occupational and social impairment. Vazquez-Claudio, 713 F.3d at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. VA intends the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based on their objectively observable symptoms. Id. at 117. Accordingly, in evaluating the Veteran’s disability, the Board will place great probative value on the Veteran’s observable symptoms as demonstrated in clinical treatment notes and mental status examinations. Factual Background By way of history, the Veteran began seeking treatment at the VA for an acquired psychological disorder in 2002, complaining of difficulty with memory retention and recall and problems with anger and irritability, although the treating clinician noted he exercised control over his anger, giving away his guns and expressing it strictly verbally. According to VA treatment records, the Veteran has attended biweekly to monthly group therapy for his mood disorder and participated in an anger management group since October 2010. Reports indicate he regularly attended and actively participated in both groups until 2019. Throughout the appeal period the Veteran has remained unmarried and lived alone, although he has dated several individuals. The Veteran was afforded a VA psychological examination in April 2012. The Veteran indicated he had not worked since symptoms of chronic obstructive pulmonary disease (COPD) required him to retire from being a self-employed carpenter in 2009. However, he reported actively participating at his church, and that while he occasionally experienced anxiety he would “stop and clear his mind” before continuing. He also described enjoying visiting with family and friends as well as pursuing his photography hobby. The Veteran reported his primary symptoms were “anger and anxieties,” occurring when “something comes up” like church or an event, although he described only experiencing one panic attack in his lifetime. He denied sleeping problems, difficulty concentrating or hypervigilance. The examiner diagnosed the Veteran with a mood disorder- depression with anxiety, as well as a personality disorder. He opined that the Veteran’s mood disorder “does not appear to have an impact on his work ability or employability” and attributed his past problems with interpersonal relationships and employers to his personality disorder. In a June 2013 statement in support of his claim, the Veteran stated “when I get angry, I forget where I’m at and what I’m doing. I have occupational impairment and difficulty holding jobs.” A July 2013 letter from his treating social worker indicated the Veteran reported an inability to hold down a job, never working anywhere long enough to earn a vacation. The Veteran stated he was generally self-employed as a carpenter, electrician and construction worker. He reported working for a time in manufacturing but was not successful due to his limited attention span and that his “nerves wouldn’t let [him] handle” substitute teaching. The Veteran submitted a December 2014 private psychological evaluation. The evaluator listed as the Veteran’s psychological symptoms: depression, past thoughts of suicide and thoughts of killing another person, poor concentration, loss of memory, word finding difficulties, confusion, panic, paranoid thoughts, irritability, excessive anger, trouble thinking, flashbacks and “checking things.” Upon examination the Veteran denied any suicidal or homicidal ideation. He reported experiencing angry feelings, staying home and withdrawing from others in response to his fear of dangerousness, paranoia and anger as well as sleep disturbance with nightmares and depressed mood. The evaluator determined the Veteran manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care and conversation due to symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, inability to establish and maintain effective relationships and impaired impulse control, such as unprovoked irritability with periods of violence. A January 2015 buddy statement indicated the Veteran was easily startled by loud or sudden noises, was quick to anger and suffered from recurring nightmares. The Veteran was afforded a VA psychological examination in June 2015. The Veteran reported seeing his sister once or twice a year, having several dating relationships, and having friends, but stated he could not confide in them as they were not Veterans. He indicated he was first vice president of his chapter of the Vietnam Veterans of America, belonged to the Old Fellows Lodge, pursued a photography hobby and helped others in his apartment building, noting he preferred to stay busy. The examiner described the Veteran as oriented, pleasant, cooperative and attentive, and he denied any suicidal or homicidal ideation or recent history of violent behavior. The Veteran described two incidents that occurred many years prior where he became assaultive or confrontational with others. The examiner diagnosed the Veteran with unspecified depressive disorder with anxious distress, indicating the Veteran manifested 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 due to symptoms of depression and anxiety. VA treatment records include a July 2016 VA individual psychological evaluation. The psychiatrist indicated the Veteran’s depression manifested in frequent declines of mood with periods of isolation and withdrawal and observed he continued to experience difficulties with developing and maintaining interpersonal relationships despite his active participation in group psychotherapy. The Veteran was afforded an additional VA psychological examination in October 2016. The examiner determined that unspecified depressive disorder with anxious distress remained the best diagnosis for the Veteran’s symptoms, which were likely to mildly impact his motivation and mood but did not interfere with his VA group attendance nor prevent his engagement in outside activities such as church choir, music, photography and writing. She observed it was emotionally frustrating for the Veteran to have health and emotional limitations, causing him to experience moderate irritability in the form of becoming “overly opinionated” or “snapping” at others at times, specifically noting this did not rise to the level of aggression. The examiner stated the Veteran manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation due to symptoms of depressed mood, suspiciousness, anxiety and chronic sleep impairment. VA treatment records contain an April 2018 report from the Veteran’s treating mental health clinician. The clinician noted the Veteran experienced ongoing problems with social and occupational functioning due to symptoms of anxiety and depression. These symptoms included anxious mood such as feeling hypervigilant or irritable, depressed mood and restlessness or slowed behavior observed by family and friends, causing a moderate to significant level of behavioral health decompensation. A July 2018 buddy statement from a friend of seven years reported the Veteran frequently showed signs of depression and appeared anxious in daily settings as well as irritable over minor events. An August 2018 letter from the Veteran’s social work caseworker indicated he manifested nightmares from which he awakes in a panic, hypervigilance, an exaggerated startle reflex and avoidance of social situations in his personal and professional life. He reported the Veteran consistently demonstrated high motivation with regard to participation and retention of behavioral health techniques and strategies. November 2019 VA treatment records indicate the Veteran described himself as doing “good,” as he had been hired by the city to be a grinder at a mill, working 40 hours per week. He stated his additional income allowed him to do more with his photography and plant folklore interests and reported his mood had improved with both the intellectual and physical stimulation of his new position. He denied any suicidal or homicidal ideation and his symptoms were noted as anger, a lowered frustration tolerance, poor sleep and nightmares. The Veteran stated he was unable to regularly attend anger management group sessions for the past two months due to his work schedule and had noticed a worsening of his anger, irritability and frustration tolerance, but expressed a desire to “keep this in check.” February 2020 correspondence from the Veteran’s treating social worker noted he experienced insomnia due to distressed dreaming and anxiety and reported an increase in agitation, anhedonia, depressed mood and frustration challenges in his personal and occupational life. He continued to demonstrate high motivation in participating and retaining behavioral health techniques and strategies. In compliance with the April 2020 Board remand, the Veteran was afforded an additional PTSD examination in October 2020. The Veteran described his mood as mostly “depressed, anxious,” reported difficulty falling and staying asleep, waking up two to three times per night due to nightmares, indicated poor motivation, interest, energy, concentration. He also reported feelings of guilt, worthlessness and hopelessness, but denied suicidal or homicidal ideation or hallucinations. The Veteran stated he could be verbally aggressive with anyone, but reported his last physical aggression was in the 1970s or 1980s. His affect was described as constricted and mildly irritable and his demeanor as cooperative and reserved. The examiner found the Veteran manifested occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation due to symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances in motivation or mood, difficulty adapting to stressful circumstances including work or a worklike setting and near-continuous panic or depression affecting the ability to function independently appropriately and effectively. Analysis After a review of the lay and medical evidence of record, the Board finds the severity, frequency and duration of the Veteran’s psychological symptoms have not met or more closely approximated the criteria for a rating in excess of 30 percent of DC 9435 before October 26, 2020. Prior to this date, the Veteran manifested symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, and difficulty in establishing and maintaining effective work and social relationships, causing 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. Throughout the period on appeal, the Veteran has consistently presented as well-groomed and appropriately attired, with linear thought processes, clear speech, grossly intact memory, adequate insight and judgment with no signs of psychosis. He has credibly reported experiencing depressed mood with anxiety at the prospect of social functions, momentary forgetfulness, hypervigilance, irritable behavior and insomnia due to recurring anxiety and nightmares. These symptoms correspond to those of depressed mood, anxiety, suspiciousness, chronic sleep impairment and mild memory loss as described in the 30 percent rating criteria. With regard to a rating in excess of 30 percent, the Veteran submitted a private December 2014 psychological evaluation noting symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, inability to establish and maintain effective relationships and impaired impulse control (such as unprovoked irritability with periods of violence). The Board notes that most of these symptoms are contemplated by the 30 percent rating criteria. The private evaluator noted impaired impulse control, and the Board acknowledges the credible lay and medical reports of the Veteran’s irritability and quickness to anger. However, the Board observes the Veteran has never reported perpetrating a violent act and indicated he had not demonstrated physical aggression towards another person since the 1970s or 1980s. Furthermore, while the Veteran has described being verbally argumentative and “snapping” at others, there is no evidence of impaired judgment or violence as contemplated by the higher rating criteria. The past ideations of suicide and violence towards others noted by the private evaluator appear to have occurred long before the period on appeal. Finally, although the evaluator noted an inability to establish and maintain effective relationships, she still opined that the Veteran’s psychological symptoms caused at most occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Board concludes that while the Veteran exhibits difficulty in establishing and maintaining effective work and social relationships as well as mood disturbances, the frequency, duration and severity of these symptoms correspond more accurately to the level of impairment contemplated by the 30 percent rating criteria. While the Veteran is unmarried and lives alone, he has dated several women during the period on appeal and has maintained friendships as well as relationships with people at his church, charitable organization and group therapy. As noted above, the Veteran reports increased irritability, but has the self-control to recognize this symptom and never allow it to advance beyond being verbally argumentative or “snapping” at others. While the Veteran disagreed with the initial 30 percent evaluation of his psychological disability, the clinical assessment of an unspecified anxiety disorder with anxious distress is medically complex and generally beyond the competency of a lay witness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). It is also beyond the lay competence of the Board. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Veteran’s private and VA treatment providers have consistently evaluated his service-connected psychological disorder as causing, at most, occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. These professional opinions were based upon interviews of the Veteran, mental status examinations and review of the claims folder. The Board finds no deficiencies in these examination reports, and the symptomatology underlying these opinions is consistently similar to symptoms noted in clinical reports before and after the examination evaluations. In sum, there is no competent opinion that the frequency, duration and severity of the Veteran’s psychological symptoms cause occupational and social impairment with reduced reliability and productivity or worse. Throughout the appeal period prior to October 26, 2020, the Veteran indicated he was unemployed because his COPD forced him to retire from his job as a self-employed carpenter. He reported difficulties in the past dealing with supervisors, but this is contemplated by the evaluators’ impression of occupational impairment. Therefore, the Board finds the evidence does not show that an initial disability in excess of 30 percent for PTSD is warranted. As the preponderance of the evidence is against the claim for a higher rating, the benefit of the doubt doctrine is not for application, and the Veteran’s claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Board also finds that since October 26, 2020, the severity, frequency and duration of the Veteran’s symptoms have not met or more closely approximated the 100 percent rating criteria of DC 9435. Most notably, the Veteran has not demonstrated total social or occupational impairment at any point during the appeal period. While the evidence indicates he has experienced difficulty in establishing and maintaining effective work and social relationships, since 2019 he has apparently been employed full time, and since 2011 he has dated, regularly participated in church and charitable functions, and maintained friendships with others. During the appeal period the Veteran has lived alone and successfully cared for himself, presenting as neatly dressed and appropriately groomed at all mental health appointments. Additionally, the record is silent for evidence of delusions or hallucinations, disorientation to time and place, or severe memory loss. Therefore, a rating in excess of 70 percent from October 26, 2020 is not warranted. See Vazquez-Claudio, 713 F.3d at 116-17. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s claim for entitlement to a TDIU must again be remanded. The April 2020 Board remand determined that the issue of entitlement to a TDIU had been raised by the record and asserted by the Veteran and as such is considered part of his claim of an increased rating for depression with anxiety. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran’s service-connected disabilities currently include: depression with anxiety, rated 30 percent disabling prior to October 26, 2020 and 70 percent disabling thereafter; tinnitus, rated as 10 percent disabling from March 28, 2011; a left ankle sprain, rated as 10 percent disabling from January 29, 2018; as well as bilateral hearing loss and dermatophytosis, both rated as noncompensable (0 percent disabling) from March 28, 2011. The Veteran’s combined evaluation for compensation is 30 percent from February 22, 2011, 40 percent from March 28, 2011 and 80 percent from October 26, 2020. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Veteran meets the schedular criteria for entitlement to a TDIU from October 26, 2020. The Board notes, however, that additional VA examinations have recently been afforded to the Veteran for several service connection claims, one of which is entitlement to service connection for COPD. While the Veteran’s January 2021 formal TDIU application notes that he is unable to obtain or maintain a gainful occupation due to his service-connected acquire psychiatric disorder, the record reflects that the Veteran has also reported that he had to retire due to his COPD. These additional service connection claims, however, are currently under development at the RO and pending adjudication. As these pending claims may impact the claim for entitlement to TDIU, it would be premature for the Board to adjudicate the claim at this time. Accordingly, the appeal for entitlement to TDIU is deferred. The matter is therefore REMANDED for the following action: Complete any development necessary regarding any pending service connection claims. Then, readjudicate the claim for entitlement to a TDIU. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. C. Schumacher, 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.