Citation Nr: 21011340 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-28 644 DATE: March 1, 2021 ORDER Entitlement to a disability rating in excess of 30 percent from September 8, 2011, to January 6, 2020, and in excess of 70 percent from January 7, 2020, for persistent depressive disorder with unspecified anxiety disorder and secondary insomnia (depressive disorder) is denied. FINDINGS OF FACT 1. From September 8, 2011, to January 6, 2020, the Veteran’s depressive disorder manifests as occupation and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since January 7, 2020, to present, the Veteran’s depressive disorder manifests as occupation and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for evaluation for a disability rating in excess of 30 percent from September 8, 2011, to January 6, 2020, and in excess of 70 percent from January 7, 2020, for depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10; 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty service from June 1992 to August 1995. This matter comes before the Board of Veterans’ appeals (Board) on appeal from a December 2014 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). Procedurally, the Board notes that in the November 2014 Board decision, service connection for hypersomnia was granted. In the December 2014 rating decision, the RO evaluated the Veteran’s hypersomnia with his already service-connected dysthymia disorder and continued a 30 percent disability rating effective September 8, 2011, under DC 9433 because the evaluation of the same disability under various diagnoses is to be avoided. Subsequently, the Veteran appealed the December 2014 rating decision and insisted that his hypersomnia should be separately rated. In the May 2020 rating decision, the RO changed the Veteran’s service-connected dysthymia-hypersomnia to depressive disorder and granted a 70 percent disability rating effective January 7, 2020, under DC 9434. Since the 70 percent disability rating is not the maximum rating available and the Veteran has not indicated satisfaction with the rating assigned, the issue was continued on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). In the May 2019 Board remand, the RO was requested to obtain all VA treatments and private records since September 2015 and provide an examination to determine the current severity of the Veteran’s depressive disorder. In December 2019, the RO requested for the Veteran to provide any private treatment records and authorization to disclose these records to VA. All VA treatment record since September 2015 were obtained and associated with the claim file. Also, the Veteran was provided an examination in January 2020. The January 2020 examination was adequate because the VA examiner provided a detailed report of the Veteran’s symptoms for all identified psychiatric conditions. Therefore, there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a disability rating in excess of 30 percent from September 8, 2011, to January 6, 2020, and in excess of 70 percent from January 7, 2020, for depressive disorder is denied. The Veteran contends his insomnia warrants a separate rating, and his depressive disorder warrants a higher disability rating. As a preliminary matter, in the January 2020 VA examination, the VA examiner determined that the Veteran’s hypersomnia is in fact insomnia and is a part of his depression. As result, a separate rating is not necessary since the Veteran’s insomnia is a symptom of his depressive disorder in his psychiatric evaluation and in the considerations of his assigned disability ratings. Therefore, the Board will determine whether an increased disability rating is warranted during the appeal period for the Veteran’s depressive disorder. Disability evaluations are determined by comparing a veteran’s present symptoms with the criteria set forth in the VA’s Schedule for Rating Disabilities (rating schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a single diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. As such, the Board must consider all potentially applicable diagnostic codes when rating a Veteran’s disability. However, evaluation of the same manifestation of the same disability under various diagnoses, otherwise known as “pyramiding” is to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261 (1994). 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). 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 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. In the May 2011 VA treatment record, it was noted that the Veteran reported that he really likes his job and his boss has been very good to him. He stated he has been anxious that somehow his job would be negatively affected by his health situation. Also, it was noted that he appeared less depressed or at least less emotional. In the July 2011 VA treatment record, it was noted that the Veteran reported things are finally going his way. Also, it was noted that he is working and rebuilding his house, and he is doing well coping with his moods, has fewer negative moods, and he is sleeping better due to exhausting himself with his job and working on his house. In the August 2011 VA treatment record, it was noted that the Veteran has increasing stressors such as his girlfriend, living situation, and grandparents. He reported continued anxiety and impaired sleeping with nightmares. In the November 2011 VA treatment record, it was noted that the Veteran has difficulty with sleepiness at work and even fell asleep a couple times on the job. In the March 2012 VA treatment record, it was noted that the Veteran has no major stressors affecting his mood, and he is trying to stay positive. He denied suicidal or homicidal thoughts and was getting along with his girlfriend and her two daughters. In the May 2012 VA treatment record, it was noted that the Veteran was frustrated and tearful when discussing a recent episode of losing control over his blood sugars causing him to unknowingly hit a parked car. Overall, he reported that he is doing well, loves his job and his girlfriend. Also, he reported that he is continuing to work on a house he has already purchased. In the December 2012 VA treatment record, it was noted that the Veteran reported that he still falls asleep at work when he is running the equipment or when loading his truck. Also, it was noted that his girlfriend and daughters left a couple months ago, and he was tearful. In the August 2013 VA treatment record, it was noted that the Veteran reported he no longer has difficulty with falling asleep at work. In the November 2013 VA treatment record, it was noted that the Veteran reported that he gets so mad at himself and frustrated over things he ought to be able to control. Also, it was noted that he becomes tired at work often and chooses to sleep at work when appropriate. He was still tearful and depressed which is usually connected to various episodes of irritability and outbursts of anger. In the April 2014 VA treatment record, it was noted that the Veteran reported that he is sleeping better, and his appetite and energy are good. Also, he reported that his depression is well managed. In the July 2014 VA treatment record, it was noted that the Veteran denied any problematic symptoms of depression, and he reported that his symptoms are well managed. Also, he stated that he has an occasional day with increased depressed mood, irritability or little motivation. In the December 2014 VA treatment record, it was noted that the Veteran reported that he lost his job two months ago due to his diabetes and has exacerbated his depression. Also, he reported that his girlfriend is supportive, and his father provided him an opportunity to work at his hardware store. In the April 2015 VA treatment record, it was noted that the Veteran reported he is less depressed and more optimistic about his future. Also, he reported that he is adjusting to not working and feels better about himself. In the October 2015 VA treatment record, it was noted that the Veteran reported he is continuing to do well, and he denied any recent problematic symptoms of his depression. He stated him and his girlfriend are doing well and him and his father opened a second hardware store. Also, he stated that he believes he is managing his life stressors well. In the July 2016 VA treatment record, it was noted that the Veteran reported that he is doing reasonably well. Also, he stated he continues to date his girlfriend and denied problems in the relationship. In the October 2016 VA treatment record, it was noted that the Veteran reported that he continues to deal with periods of fatigue and low motivation, but they are of brief duration. In the April 2017 VA treatment record, it was noted that the Veteran reported that he is doing pretty good, and he denied any significant problems related to his depression. Also, he reported that he continued to help at his father’s hardware store and working on finishing his house. In the October 2017 VA treatment record, it was noted that the Veteran reported that he is doing pretty good, and he is managing his depression well with medication. Also, he stated that he may have a day when he may not want to do anything because of low motivation or a depressed mood but this is rare. In the January 2018 VA treatment record, it was noted that the Veteran reported two new stressors: (1) he learned he may have a thyroid issue and (2) his mother mismanaged his bill payments. As a result of the later, his relationship with his parents was affected. In the July 2018 VA treatment record, it was noted that the Veteran reported that things are better and his relationship with his parents is slowly improving. In the March 2019 VA treatment record, it was noted that the Veteran reported that he is doing well, and he denied any problems related to his depression. However, he stated that he can have occasional days where his energy and motivation are low. In the May 2020 VA treatment record, it was noted that the Veteran reported that his medication is working well for his mood and his energy level has improved since the weather is getting better. Also, he denied any new complaints, and he denied any suicidal or homicidal ideation. In the August 2020 VA treatment record, it was noted that the Veteran reported that he is getting things done but not without difficulty. Overall, it was noted that he was alert and oriented, no evidence of a thought disorder, and no reports of suicidal or homicidal ideation. The Veteran was afforded two VA examinations. First, in the April 2012 VA examination, it was noted that the Veteran reported that he felt depressed, tearful at times, and helpless. He did not report any suicidal thoughts, and he has not done anything to hurt himself. Also, he reported restless sleep. Overall, the VA examiner noted that the Veteran was tearful and anxious during the examination. He was well oriented to day, date, month, year, place, person and situation. Also, he showed fairly intact memory, insight and judgment for his age. Second, in the January 2020 VA examination, the VA examiner classified the Veteran’s social and occupation impairment as deficiencies in most areas. Symptoms noted were depressed mood; anxiety; chronic sleep impairment; mild memory loss; disturbance of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and difficulty in adapting to stressful circumstances. Under relevant social/martial/family history, it was noted that the Veteran has a girlfriend and a two-year-old son. He does not do much, stays home, tries to build things at home, and does some chores. He worked in a sawmill in excavation, but he has been on social security disability for the last two and a half years. Overall, the VA examiner determined that the Veteran appeared to be orient to self, place and situation. His mood was dysthymic, and affect is restricted. No suicidal or homicidal thoughts. No audio hallucinations. His cognition was intact. He showed fair memory, insight and judgment. The Board finds the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 30 percent disability rating from September 8, 2011, to January 6, 2020. The Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, but was generally functioning satisfactorily, with routine behavior, self-care, and normal conversation. The VA treatment records and April 2012 VA examination indicate that the Veteran generally was fully alert and oriented, affect and speech was normal, and mood was stable. Further, during the April 2012 VA examination, depressed mood was a noted symptom. Simply because the Veteran has depressed mood, and the 50 and 70 percent criteria contemplate depression, this does not mean that the higher criteria are met. Further, the VA examiner noted that the Veteran had depressed mood, rather than the more severe “disturbance” in mood. Additionally, the 70 percent criteria describe even higher severity, “near-continuous,” depression which impacts the ability to function independently. Here, the record only shows occasional depression, which implies that his depression is not continuous. The severity, frequency, and duration of the Veteran’s depressed mood are best approximated by the 30 percent criteria. Additionally, the level of impairment caused by the Veteran’s symptoms more closely approximates the level associated with a 70 percent rating since January 7, 2020. The Veteran objectively demonstrated having occupational and social impairment with deficiencies in most areas as indicated by the January 2020 VA examination. Additionally, there were no references to homicidal ideation and/or suicidal ideation. Further, the record consistently indicates his thought processes and orientation has been appropriate and not impaired. Collectively, the impact of his symptoms more closely resembles occupational and social impairment with deficiencies in most areas. However, the 100 percent criteria are not satisfied. The 100 percent criteria require both total occupational and total social impairment, and total occupational impairment is not shown for the reasons discussed below. Overall, to have a 100 percent rating, both total occupational and total social employment must be shown. “Total” is defined as “whole, not divided; full; complete,” and “utter, absolute.” Black’s Law Dictionary, 1498 (7th ed. 1999). Total social impairment is not shown. The Veteran has maintained relationships with his girlfriend, children and parents as noted above. Although he has had difficulty at times, there is no evidence of total social impairment. For this reason, complete and utter social impairment is not shown. In light of the foregoing, the Board finds that a 30 percent disability rating from June 25, 2013, to January 27, 2020, best approximates the overall severity of the Veteran’s depressive disorder. Additionally, a 50 percent disability rating from January 7, 2020, best approximates the overall severity his depressive disorder, increases beyond these levels are not warranted. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Willoughby, 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.