Citation Nr: 21011587 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 17-58 191 DATE: March 2, 2021 ORDER From May 14, 1987, through March 2, 2009, an initial compensable rating for major depressive disorder superimposed on avoidant personality disorder is denied. From March 3, 2009, through March 25, 2020, an initial rating in excess of 50 percent for major depressive disorder superimposed on avoidant personality disorder is denied. FINDINGS OF FACT 1. From May 14, 1987, through March 2, 2009, the evidence shows the Veteran did not have a diagnosed depressive neurosis, neurotic or depressive symptoms that may somewhat adversely affect relationships with others, or a mental disorder that had been formally diagnosed (other than congenital avoidant personality disorder). 2. From March 3, 2009, through March 25, 2020, major depressive disorder superimposed on avoidant personality disorder was manifested at worst by intermittent depressed mood, low energy, sleep impairment, poor concentration, increased appetite, intermittent anhedonia, fair to poor insight, and an episode of blunted affect with passive suicidal ideation without plan or intent in March 2018 that coincided with the Veteran’s recent divorce and moving out of the family home. CONCLUSIONS OF LAW 1. From May 14, 1987, through March 2, 2009, the criteria for an initial compensable rating for major depressive disorder superimposed on avoidant personality disorder have not been met or more nearly approximated. 38 U.S.C. §§ 355, 1155, 5107; 38 C.F.R. § 3.102, 4.3, 4.7, 4.132, Part 4, Code 9405 (1987), (1988); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (9434). 2. From March 3, 2009, through March 25, 2020, the criteria for a rating in excess of 50 percent for major depressive disorder superimposed on avoidant personality disorder have not been met or more nearly approximated. 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 February 1983 to September 1986. This matter comes before the Board of Veterans’ Appeals (Board) from May 2017 and June 2017 rating decisions. This appeal for higher disability ratings for major depressive disorder superimposed on congenital avoidant personality disorder is procedurally complex. Therefore, a summary of the Veteran’s prior claims and appeals is included herein to the extent they are pertinent to understanding the current appeal. The May 2017 rating decision on appeal assigned an earlier effective date of May 14, 1987, for the grant of service connection for major depressive disorder; the decision assigned a noncompensable (0 percent) rating from May 14, 1987, and continued the 50 percent rating that had previously been assigned effective March 3, 2009. By way of history, on May 14, 1987, the Veteran had filed his original claim for service connection for a nervous disorder and a claim for an increased rating for his service-connected right knee post-operative torn ligament, rated based on instability. After he was afforded VA psychiatric and orthopedic examinations, a January 1988 rating decision denied service connection for an acquired psychiatric disorder because none was shown by the evidence of record and for his avoidant personality disorder, including the claimed anxiety disorder, because it was considered a constitutional or developmental abnormality. The decision also denied a higher rating for the right knee disability. In a February 1988 letter, the AOJ notified the Veteran that the evidence did not warrant a change in the previous determination regarding the assigned rating for his right knee disability. The letter did not explicitly notify him that his claim for a nervous disorder had been denied; however, the February 1988 letter notifying him of the January 1988 decision implicitly denied the claim of service connection for a nervous disorder because the letter clearly indicated the AOJ had adjudicated and denied his claim for an increased rating for his right knee disability. See Deshotel v. Nicholson, 457 F.3d 1258, 1261 (Fed. Cir. 2006) (holding that if the record shows the existence of an unadjudicated claim, raised along with an adjudicated claim, and the AOJ’s decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run). The Veteran did not initiate an appeal of the January 1988 AOJ decision regarding either his claimed psychiatric disability or the rating for his right knee disability, and new and material evidence was not received within one year of the notice of the decision. Instead, the next correspondence received from the Veteran was a letter received in February 1990, notifying the AOJ that he no longer wished to accept VA compensation for his service-connected right knee disability because he had become a Christian and Jesus would take care of him. Thus, the January 1988 decision denying service connection for an acquired psychiatric disorder, to include a nervous disorder, and for avoidant personality disorder became final and was not subject to revision on the same factual basis. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.1103. In March 2005, VA received the Veteran’s application to reopen the previously denied claims of service connection for an acquired psychiatric disorder and a personality disorder. In a June 2005 rating decision, the AOJ declined to reopen those claims because the Veteran did not submit new and material evidence. The AOJ notified the Veteran and his representative of the decision in a separate letter the same month. Again, he did not initiate an appeal of that decision or submit new and material evidence within one year of the notice of the decision, and the June 2005 rating decision became final. Finally, on March 3, 2009, VA received an application to reopen the previously denied claim for service connection for “mental disorder avoidant personality.” In October 2009, the AOJ received correspondence dated in June 2009 from the Veteran addressed to his representative, which the AOJ accepted as a notice of disagreement (NOD) with an April 2009 rating decision, which declined the reopen the claim for service connection for a personality disorder. Then, in January 2010 correspondence, the AOJ notified the Veteran and his representative that the 1988 decision denying service connection for a personality disorder and for an acquired psychiatric disorder had not become final because the AOJ “never formally notified [the Veteran] of those decisions.” The Veteran perfected an appeal of the April 2009 rating decision and eventually, in a January 2017 decision, the Board resolved reasonable doubt in the Veteran’s favor and, based on a September 2016 expert medical opinion by a VA psychiatrist, granted service connection for major depressive disorder superimposed on his congenital avoidant personality disorder. The January 2017 Board decision recognized that medical evidence of record also showed that the Veteran had been treated for anxiety in service and diagnosed with an anxiety disorder after service but denied that aspect of his claim because the VA psychiatrist who reviewed the Veteran’s claims file and provided the expert medical opinion in September 2016 explained that the anxiety was “more likely than not to be an additional expression of the avoidant personality disorder.” A January 2017 rating decision effectuated the Board’s decision, granting service connection for major depressive disorder and assigning a 50 percent rating effective March 3, 2009. The Veteran disagreed with the assigned effective date. The May 2017 rating decision granted service connection for major depressive disorder and assigned a noncompensable rating from the earlier effective date of May 14, 1987. Although the May 1987 claim for a nervous disorder had been implicitly denied in February 1988 and the decision did become final, the Board will not disturb the May 14, 1987 effective date assigned for the grant of service connection for major depressive disorder superimposed on avoidant personality disorder. While his appeal of the claim for service connection for a psychiatric disorder was pending, the Veteran had also filed claims of entitlement to a total disability rating based on individual unemployability (TDIU). In September 2014, he claimed entitlement to a TDIU due to avoidant personality disorder, an acquired psychiatric disorder, and nonservice-connected problems with his hands. A January 2015 rating decision denied the claim and the AOJ notified him of the decision the same month. In October 2015, he again claimed entitlement to a TDIU due to psychiatric and personality disorders. The AOJ denied the claim in February 2016 and notified him of the decision the same month. Neither the Veteran nor his former representative initiated an appeal of the January 2015 or February 2016 decisions. The June 2017 rating decision on appeal followed the Veteran’s claim received on February 1, 2017 seeking to reopen his previously denied claim for service connection for hearing loss and seeking entitlement to a TDIU due to hearing loss. The June 2017 rating decision declined to reopen the claim for service connection for hearing loss and denied entitlement to a TDIU; however, although the Veteran did not claim that his service-connected right knee disability (post-operative torn ligament with traumatic arthritis), which was rated based on instability, had increased in severity or that his major depressive disorder (now service connected) had increased in severity, the AOJ also adjudicated these issues in the June 2017 rating decision. In addition, the AOJ granted service connection for additional right knee disabilities–a scar and limitation of flexion–each effective from December 21, 2016, which is the date the AOJ apparently received an Intent to File a Claim for Compensation (although neither that form nor an acknowledgment of receipt of that form is associated with the electronic claims file). In August 2017, the AOJ received an NOD from the Veteran’s attorney on his behalf disagreeing with the decisions outlined in the June 29, 2017 notification letter (corresponding with the June 2017 rating decision), regarding the claim to reopen service connection for hearing loss, the 50 percent rating assigned for major depressive disorder, the ratings assigned for each right knee disability, and for the denial of a TDIU. In April 2018, the AOJ received an NOD from the Veteran’s attorney on his behalf disagreeing with the noncompensable rating assigned for major depressive disorder between May 14, 1987 and March [2], 2009 in the May 2017 rating decision. The Veteran perfected timely appeals of both decisions. In an April 2019 decision, the Board denied the application to reopen a claim of service connection for bilateral hearing loss and denied the appeal for a compensable rating for major depressive disorder prior to March 3, 2009 and in excess of 50 percent thereafter. The Board remanded the appeal regarding higher ratings for the right knee disabilities and for a TDIU to the AOJ for additional development. On March 26, 2020, the AOJ received a Notice of Intent to File a Claim for Compensation, followed by the claim itself on April 23, 2020, for an increased rating for major depressive disorder and for the “right knee,” although the issues regarding the right knee ratings remained on appeal after having been remanded by the Board in April 2019. On April 29, 2020, the Board received a Motion for Reconsideration, or in the alternative, a Motion for Vacatur, of the April 2019 Board decision to the extent that it denied a compensable rating for major depressive disorder prior to March 3, 2009 and a rating in excess of 50 percent thereafter. The Veteran’s attorney argued on his behalf that the April 2019 Board decision did not consider the Veteran’s “2000 email” and other particular records and did not evaluate his disability using the diagnostic criteria in effect on November 7, 1996. A June 2020 rating decision increased the assigned rating for major depressive disorder superimposed on avoidant personality disorder to 70 percent effective March 26, 2020. After completing the development requested in the April 2019 Board Remand, the AOJ issued a supplemental statement of the case (SSOC) in June 2020, readjudicating the issues of entitlement to a TDIU and higher ratings for the right knee disabilities. On the same day, June 5, 2020, the AOJ received the Veteran’s claim for an increased rating for major depressive disorder and for his right knee disabilities, although the ratings for his right knee disabilities remained on appeal. On June 23, 2020, the Veteran, through his attorney, filed a Decision Review Request: Supplemental Claim (VA Form 20-0995), electing to opt into the modernized review system of the Appeals Modernization Act (AMA) following the issuance of the June 2020 SSOC regarding the issue of entitlement to a TDIU. 38 C.F.R. §§ 3.2400(c)(2), 19.2(d)(2). In August 2020, the AOJ issued another SSOC regarding the ratings assigned for the Veteran’s right knee disabilities. In September 2020, the Veteran, through his attorney, filed a Decision Review Request: Higher-Level Review (VA Form 20-0996), electing to opt into the modernized review system of the AMA following the issuance of the August 2020 SSOC regarding the issues of higher disability ratings for the right knee disabilities. At present, an appeal for higher ratings for the Veteran’s right knee disabilities is no longer part of the legacy appeal system and is not before the Board. In a September 2020 higher level review rating decision, the AOJ continued the ratings previously assigned for the Veteran’s right knee disabilities. He has not appealed that decision. In another September 2020 rating decision, the AOJ increased the disability rating for major depressive disorder to 100 percent effective June 5, 2020. In an October 2020 rating decision, the AOJ concluded that entitlement to a TDIU was moot because the Veteran had been rated 100 percent disabled from the date of his supplemental claim, received on June 23, 2020. In November 2020, the Veteran’s attorney requested higher level review of the October 2020 rating decision on his behalf. In subsequent correspondence, the AOJ notified the Veteran that it could not accept his request for higher level review of the October 2020 rating decision because it was already processing an appeal for a TDIU, which was received on August 22, 2017. In fact, with respect to his February 2017 claim for a TDIU and appeal of the June 2017 rating decision denying that claim, the Veteran opted into the modernized review system of the AMA in June 2020 following the issuance of an SSOC. At present, an appeal for a TDIU is no longer part of the legacy appeal system and is not before the Board. In a November 2020 decision, the Board vacated the April 29, 2019 Board decision, in part, as to the order denying a compensable rating for major depressive disorder prior to March 3, 2009, and in excess of 50 percent thereafter. In January 2021, the Board notified the Veteran that the Motion for Reconsideration of the April 29, 2019 Board decision had become moot because the Board partially vacated that decision on November 25, 2020. In summary, the sole issue currently before the Board is entitlement to an initial compensable rating for major depressive disorder superimposed on avoidant personality disorder from May 14, 1987, through March 2, 2009, and in excess of 50 percent from March 3, 2009, through March 25, 2020. The issue of a rating in excess of 70 percent for major depressive disorder from March 26, 2020, through June 4, 2020, is not on appeal before the Board because the Veteran filed a new claim for an increased rating after the April 2019 Board decision but before filing the April 2020 Motion for Reconsideration or Vacatur. If the Veteran disagrees with the 70 percent rating for major depressive disorder assigned in the June 2020 rating decision, he may seek further review of that decision as outlined by the notification letter issued to him on June 4, 2020. 1. An initial compensable rating for major depressive disorder superimposed on avoidant personality disorder from May 14, 1987, to March 2, 2009 2. An initial rating in excess of 50 percent for major depressive disorder superimposed on avoidant personality disorder from March 3, 2009, to March 25, 2020 The Veteran believes higher disability ratings are warranted for his service-connected major depressive disorder. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings should be applied, the higher rating 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 determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by a veteran, as well as the entire history of a veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Generally, when an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also for consideration in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). Analysis in this decision has been undertaken with consideration of the possibility that different ratings may be warranted for different time periods in addition to those already assigned as to the pending claim. Since the effective date of the grant of service connection for major depressive disorder superimposed on avoidant personality disorder, the criteria for evaluating psychiatric disabilities have been amended several times. VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim pursuant to the former and revised regulations during the course of this appeal. VAOPGCPREC 3-2000 (Apr. 10, 2000); 65 Fed. Reg. 33,422 (May 23, 2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under the schedular criteria for evaluating psychoneurotic disorders that were in effect at the time VA received the Veteran’s claim for a psychiatric disorder in May 1987, a noncompensable rating was assigned for a depressive neurosis (dysthymic disorder or adjustment disorder with depressed mood) when there are neurotic symptoms which may somewhat adversely affect relationships with others, but which do not cause impairment of working ability. A 10 percent rating is warranted for depressive neurosis (dysthymic disorder or adjustment disorder with depressed mood) when there is emotional tension or other evidence of anxiety productive of moderate social and industrial impairment. A 30 percent rating required definite impairment in the ability to establish or maintain effective and wholesome relationships with people and psychoneurotic symptoms resulting in such reductions in initiative, flexibility, efficiency, and reliability levels as to produce considerable industrial impairment. Higher disability ratings were warranted for more severe symptoms resulting in greater industrial impairment. 38 C.F.R. § 4.132, Code 9405 (1987). Effective February 3, 1988, the General Rating Formula for Psychoneurotic Disorders was revised. See 53 Fed. Reg. 23 (Jan. 4, 1988). Under these criteria, a noncompensable rating was warranted for neurotic symptoms which may somewhat adversely affect relationships with others but which do not cause impairment of working ability. A 10 percent rating was warranted when psychiatric impairment was less than the criteria for the 30 percent rating, with emotional tension or other evidence of anxiety productive of mild social and industrial impairment. A 30 percent rating was warranted for definite impairment in the ability to establish or maintain effective or wholesome relationships with people, and psychoneurotic symptoms that result in such reduction in flexibility, efficiency, and reliability levels as to produce definite social impairment. 38 C.F.R. § 4.132, Code 9405 (1988). Again, higher ratings were available for more severe psychiatric impairment. Id. The term “definite” has been defined as “distinct, unambiguous, and moderately large in degree,” representing a degree of social and industrial inadaptability that was “more than moderate but less than rather large.” VAOPGCPREC 9-93, 59 Fed. Reg. 4752 (1994); see also Hood v. Brown, 4 Vet. App. 301 (1993). VA General Counsel of the VA concluded in a precedent opinion that “definite” is to be construed as “distinct, unambiguous, and moderately large in degree.” It represents a degree of social and industrial inadaptability that is “more than moderate but less than rather large.” O.G.C. Prec. 9-93 (Nov 9,1993). The Board is bound by this interpretation of the term “definite.” 38 U.S.C. § 7104(c). The criteria for rating mental disorders were revised again effective November 7, 1996; the November 1996 formula remains in effect. See 61 Fed. Reg. 52695, 52700 (Oct. 8, 1996) (amending the sections of the VA schedule for rating mental disorders); see also 38 C.F.R. § 4.130 (general rating formula for mental disorders). Under the revised criteria set forth at 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders, a noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned when there is 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 continuous medication. A 30 percent evaluation is assigned 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 evaluation is for assignment 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 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 establishing effective work and social relationships. A 70 percent evaluation is contemplated 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 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. A 100 percent evaluation is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. 38 C.F.R. § 4.130, Diagnostic Code 9434. When evaluating the level of disability from a mental disorder, the rating agency 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). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall 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 the examination. 38 C.F.R. § 4.126(a). The symptoms listed in the relevant rating criteria are not intended to 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Between 2009 and 2013, VA clinicians or examiners assigned a Global Assessment of Functioning (GAF) score after examining the Veteran. A GAF score is a scale reflecting the “psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness.” See Richard v. Brown, 9 Vet. App. 266, 267 (citing Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) 32 (4th ed. 1994)). With the publication of the Fifth Edition of the DSM (DSM-5 (2013)), the American Psychiatric Association abandoned the use of GAF scores. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to DSM-5, and examinations conducted pursuant to the DSM-5 do not include GAF scores. Furthermore, because GAF scores have been found to be unreliable and abandoned by the DSM-5, the Board may not consider GAF scores in assigning psychiatric ratings in cases where DSM-5 applies. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). Even in cases where the DSM-5 does not apply, the fact remains that GAF scores have been deemed unreliable. Id. Accordingly, the Board finds the description of the Veteran’s symptomatology to be of more probative value in evaluating the severity of his disability than the assigned GAF scores. Finally, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the veteran’s service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998). To be clear, the January 2017 Board decision granted service connection for major depressive disorder based on the expert medical opinion of a VA psychiatrist in September 2016. The psychiatrist reviewed the Veteran’s claims file and concluded that it was at least as likely as not that his depression had its onset in service, observing that the Veteran was diagnosed with situational depression and treated with anti-depressants and explaining that major depressive disorder co-occurs frequently with personality disorders. Similarly, the Board decision denied service connection for an anxiety disorder because the September 2016 psychiatrist explained it was more likely than not that the Veteran’s anxiety symptoms were an expression of his avoidant personality disorder. Thus, to the extent that psychiatric symptoms have been attributed to the Veteran’s nonservice-connected anxiety disorder or congenital avoidant personality disorder, those symptoms may not be considered in determining the proper disability rating(s) for service-connected major depressive disorder. Conversely, to the extent that particular symptoms cannot be attributed to a particular disorder, such symptoms will be attributed to service-connected major depressive disorder and considered when evaluating the proper disability rating(s). Turning to the evidence, in May 1987, the Veteran presented to a VA psychiatry clinic reporting he was discharged from the military in 1986 and he wanted “to get disabled as psychiatry problem.” He indicated he was diagnosed with avoidant personality disorder while in the military and discharged because of this disorder. He stated he did not enjoy his job as an aircraft fueler; he denied problems with his living situation. On mental status examination, his speech was clear; he was alert and oriented to person, place, and time; he denied hallucinations or delusions, sleep or appetite problems, or suicidal or homicidal ideation. He reported a vague history of taking pills as a way to kill himself as an adolescent. He described a chronic history of forgetfulness and memory problems since childhood and falling off a tricycle at age five. The psychiatrist noted the Veteran was “vague about reasons for seeking treatment – except he feels that his lack of confidence in relating socially is a problem.” The Axis II diagnosis was avoidant personality disorder by history; there was “no diagnosis on Axis I.” The psychiatrist also diagnosed rule out organicity related to memory problems and referred the Veteran for a neurology consultation. The consultation request detailed the Veteran’s report of chronic memory problems since childhood with a history of hitting his head on a sidewalk as a child. The provisional diagnosis was rule out organicity. In November 1987, the Veteran was afforded a VA examination to evaluate his claimed nervous disorder. When asked to state his complaints and manifestations of his claimed psychiatric disorder, the examiner observed that the Veteran “became vague and was unable to communicate well . . . . He became somewhat uncomfortable, mildly frigidity [sic] on his seat, and stated that ‘this is rather difficult to put into words.’” He reported that people made him feel nervous, causing him to “have very sweaty hands.” He indicated that he was currently employed in the stock room of General Electric Corporation, often performing overtime. On mental status examination, he was dressed properly and his personal hygiene was “fine.” Verbal communication was fluent, coherent, and relevant, and his contact with outside reality was good. Although he reported having memory difficulties, his “memory function was good.” He appeared composed and “showed no visible anxieties nor depression.” He did not have cognitive pathology. The examining psychiatrist summarized that there was no anxiety, depression, or behavioral abnormality demonstrated to a clinical degree on examination; mental status examination was within normal limits; and a current psychiatric disorder was not demonstrated. The examiner commented that the “fact that this Veteran on a previous examination received a very mild psychiatric diagnosis that is adjustment problem with mixed emotional features does not necessarily mean that there is even a slight degree of disability, as his successful adjustment shows.” An April 1991 VA orthopedic note following a right knee surgery reflects the Veteran’s report that since discharge from military service he had worked as a truck driver and a minister. During a March 2004 VA examination to evaluate his service-connected right knee disability, the Veteran disclosed that he had been laid off from his job several weeks ago and was presently looking for another job. On March 3, 2009, VA received the Veteran’s application to reopen the previously denied claim for a mental disorder and avoidant personality disorder. In March 2009, the Veteran established medical care at the Boise VA Medical Center (VAMC). During his initial visit, screening for depression and PTSD was negative. He answered, “Not at all,” as to whether he had “little interest or pleasure in doing things” or was “feeling down, depressed, or hopeless.” (Subsequent treatment records also reflect routine screenings for depression in March 2011, August 2014, September 2014, November 2017, and May 2019; each screening assessment was reported as negative). He reported that he had difficulty with crowds and had been discharged from the military because of avoidant personality disorder symptoms. He stated that his symptoms had worsened and requested a mental health referral because he was “working on [a] service connection claim.” He reported that he worked from home for a call center. In April 2009, the Veteran presented for a psychiatric consultation. He described a long-standing pattern of avoidant personality traits, including social inhibition, feelings of inadequacy, hypersensitivity, and fear of criticism and feelings of rejection. He recalled having these symptoms even as a small child, rarely having friends in school and generally “being a loner.” He described not liking his time in the military because he found it difficult to be around others. He indicated that he does well one-on-one but experiences anxiety in large crowds or social situations, becoming tremulous, sweaty, and slightly short of breath with some chest tightening. He stated that he currently worked at home and was most comfortable doing this. His wife, who was present during the interview, described the strain placed on their marriage by the Veteran’s avoidant personality traits; the Veteran disclosed that she had threatened to separate from him in the past December because she was tired of his symptoms and avoiding others. The Veteran’s wife also stated that he was depressed and had little energy and poor concentration. The Veteran confirmed this assessment but demonstrated “minimal insight into feeling depressed.” He described poor sleep, increased appetite, impaired concentration, low energy, and anhedonia. He denied any inpatient or outpatient psychiatric treatment or any previous treatment with medications. He reported a suicide attempt in the mid-1970s in which he overdosed on pills but did not seek medical care or mental health treatment afterward. The psychiatrist noted he described the suicide attempt with a “very indifferent, isolated affect.” On mental status examination, he seemed slightly anxious and had slight psychomotor agitation. He had good eye contact, normal speech, “okay” mood with euthymic affect. His thoughts were logical, linear, and goal-directed with no thought content involving suicidal, homicidal, or violent ideation toward himself or others. He denied perceptual disturbances, including auditory and visual hallucinations, and denied paranoid symptoms. His insight was poor to fair and his judgment was intact. The examiner explained that the Veteran met the criteria for avoidant personality disorder and demonstrated “high levels of social anxiety and generalized anxiety with panic symptoms. He also met the criteria for recurrent, mild major depressive disorder. The psychiatrist prescribed Celexa for depression symptoms and Ambien for sleep impairment. In February 2010, the Veteran was afforded a VA examination that included a detailed social and industrial survey (psychosocial history) by a social worker, administration of the Beck Depression Inventory (BDI) and Beck Anxiety Inventory (BAI), and examination by a psychiatrist. Regarding current symptoms, he reported having memory impairment; being “completely incapable of functioning in any sort of social situation, which includes within an occupational environment;” being generally anxious and apprehensive and feeling “paranoid” that everyone is negatively judging him. He endorsed having racing thoughts, ruminations, and problems with anticipation of interactions with others. He also reported feeling sad and having sleep problems. He denied receiving any sort of mental health treatment since military service. He reported that he did not like the medication recently prescribed to him by a VA psychiatrist and that he stopped taking the medications. Regarding his occupational history, the Veteran indicated that he was currently working from home in a customer service job where he does not have to relate to anyone other than on the telephone. He stated that his company had been laying off people and his job has become very busy and stressful as a result, but normally work is not stressful to him. He reported he had held approximately 100 jobs or more since 1986 and 50 within the last few years, indicating he struggled to relate to subordinates and to take orders from management or authority figures; his longest periods of unemployment had been 3 to 6 months. He indicated he had been married to his wife since 2004 and described a “shaky relationship,” having separated many times. During the examination with the psychiatrist, he again described symptoms related to avoidant personality disorder such being unwilling to interact with anyone other than his wife and child, a preoccupation with being criticized or rejected in social situations, having a fear of being shamed or ridiculed, and avoiding occupational activities that involve any significant interpersonal contact by working at home where he had been “fully occupational in that capacity.” He described feeling anxious on a daily basis, being unable to relax, and feeling “scared all the time.” Reported mental status examination findings included the following: alert and oriented to person, place, and time; direct eye contact; nervous mood with anxious affect; no evidence of emotional lability; logical, linear, and goal-directed thought process; no gross evidence of psychosis, auditory or visual hallucinations. He had no anhedonia, stating that he enjoyed doing activities with his wife and daughter. He reported sleeping seven hours per night and denied any appetite or weight changes. He described a drug overdose in the mid-1970s around age 12 or 13 but currently had “no suicidal ideation whatsoever” and no homicidal ideation. The psychiatrist noted that results of the BDI was in the mild range for self-reported symptoms of depression, which involved more difficulties with feeling avoidant of other people and losing all interest in other people. Following a review of the claims file and examination, the examining psychiatrist concluded the Veteran did not meet the criteria for an Axis I diagnosis of a mental disorder; the Axis II diagnosis was avoidant personality disorder. The examiner explained that the Veteran’s nonservice-connected avoidant personality disorder had impacted his occupational functioning only when he cannot be in a setting of working from home; however, when he has been able to work from home, he has functioned very well occupationally. In November 2013, the Veteran was afforded a VA fee-basis examination. He reported he was still married to his wife, but their relationship remained strained by his long-standing difficulties in social settings and his feelings of inadequacy and hypersensitivity in interpersonal relationships. He stated that he continued to be self-employed and that he took some classes at a Bible College a couple years earlier. He indicated he started a blog for “avoidants” about three years earlier and six weeks earlier established an online church of which he is the pastor for avoidants and others with mental or personality problems. The examiner noted that the Veteran had reported to at least four mental health professionals a suicide attempt by overdose of pills as a teenager; however, at present he reported, “I don’t know how I attempted. Nobody knows. It possibly didn’t even happen.” On mental status examination, the Veteran was oriented to person, place, time, and situation; dressed casually and well-groomed; manner was friendly and cooperative; eye contact with good; speech volume, rate, and tone were within normal limits; mood was “good most of the time;” affect was mildly anxious; thought process was logical and non-tangential; and thought content was responsive without delusions, paranoia, or symptoms of psychosis and with no current suicidal or homicidal ideations present. The examiner observed that the Veteran’s self-concept appeared to be grounded in his diagnosis of avoidant personality disorder and noted the Veteran’s difficulty in establishing and maintaining effective work and social relationships. The examiner also administered some psychological assessments during the examination. The Barkley Functional Impairment Scale demonstrated “impairment is primarily related to his diagnosed avoidant personality disorder.” Among findings from the Personality Assessment Inventory, the Veteran reported “some relatively mild or transient depressive symptoms and indicate[d] that he may experience (to a mild degree) maladaptive behavior patterns aimed at controlling anxiety. Following a review of the claims file and examination, the Axis II diagnosis was avoidant personality disorder and the Axis I diagnosis was anxiety disorder, secondary to the personality disorder. The examiner explained that interpersonal and relational problems, social anxiety, poor self-esteem, and difficulty in the appropriate expression of anger were associated with the Veteran’s avoidant personality disorder; and tension, difficulty relaxing, and fatigue as a result of high perceived stress were symptoms of his anxiety disorder. The examiner added that the Veteran’s personality disorder and anxiety disorder interact and exacerbate each other and result in 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. In April 2017, the Veteran was afforded a VA examination to evaluate the current severity of his service-connected major depressive disorder. He reported that he lived with his wife of 15 years, describing their marriage as “good,” but it took his wife “time to figure out how to deal with” him. He described a “very good” relationship with his teenage daughter. He stated that he had no friends and it had “always been like that.” He indicated that in his free time, he likes to read, watch TV, and research things on the internet. He reported going to church regularly but stated, “It can be difficult because of the relationships I don’t have.” Regarding employment, he reported he had been running a nonprofit organization for ten years in which he helps people with various needs (mostly providing emergency gas) with his own resources. He indicated that his last job was in January 2017 at the Department of Health and Welfare and involved talking on the phone; he quit after a few weeks. He reported that his mood “depends on the day,” explaining that “some days are bad and I feel like everything is wrong and I can’t do anything right.” The examiner remarked that this was related to his fear of social interactions. He reported he was not receiving any current therapy but might be interested in the future. He denied any suicidal or homicidal ideation but reported an attempt after the military. The examiner noted that the Veteran’s statement contradicted his earlier reports of having attempted suicide prior to joining the military. The Veteran denied any difficulties in daily functioning or his ability to take care of himself or his family. Symptoms that actively applied to the Veteran’s diagnoses, which included avoidant personality disorder, were listed as depressed mood; anxiety; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a worklike setting; and inability to establish and maintain effective relationships. Behavioral observations included the following: good hygiene; oriented to person, place, time, and situation; cooperative; appropriate eye contact; speech withing normal limits for rate, tone, volume, and prosody; no evidence of hallucinations; judgment appeared good; and mood was stated as “okay” and affect was euthymic. Results of the BDI, a self-measure of depressive symptoms, indicated severe depression symptoms in the past two weeks while the BAI indicated moderate anxiety in the past week; the examiner noted that both instruments had a “high face validity.” Results of the MMPI-2-RF were invalid. The examiner explained that the Veteran “endorsed an extremely high number of symptoms that are rarely endorsed in psychiatric symptoms, which is indicative of over-reporting, and extreme enough to render the profile uninterpretable.” The examiner summarized that the Veteran continued to meet the diagnostic criteria for avoidant personality disorder and that his occupational functioning continued to be impaired by this disorder. This examiner also believed that the Veteran’s anxiety and depressive symptoms were related to his avoidant personality disorder and did not meet criteria for separate diagnoses. Finally, the examiner concluded that the Veteran’s symptoms likely 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 normal routine behavior, self-care, and conversation. In March 2018, the Veteran presented to the VA emergency department with complaints of depression and suicidal ideation without plan; he appeared depressed and tearful. He told the emergency department physician that he wished he would not wake up or that “God would just take me.” He stated that his symptoms worsened recently by a divorce two months earlier and by moving out on his own two weeks earlier. His ex-wife reported that he sits in a dark room all day and stares at the floor. She believed that he minimizes his depression and was fearful that he would kill himself so she hid the household guns. During an inpatient admission evaluation, he appeared alert and fully oriented; he reported having virtually no memory of his childhood due to epilepsy at age five; there was no evidence of altered perception; he endorsed passive suicidal thoughts and denied homicidal thoughts; he described experiences of dissociation; his communication was relevant, coherent, and with appropriate tone and flow; and no speech difficulties were noted. During a psychiatric evaluation the next day, the Veteran described a history of recurrent depression for at least 15 to 20 years (1998) with the most recent episode occurring six to eight weeks earlier as he was getting divorced and markedly increasing in the past two weeks after he moved out of the house. He reported anhedonia, low energy, and suicidal thoughts without intent or plan. He indicated that he worked full-time from home managing an e-commerce website. On mental status examination, he was alert and fully oriented; he was neatly dressed and groomed; he had normal speech with fluent and articulate language; his mood was depressed and his affect was blunted; thought process was logical and goal-directed with intact associations and abstraction; no hallucinations or delusions were evident or elicited; attention, concentration, and judgment were intact; recent and remote memory were grossly intact; and insight was fair. The diagnosis was major depressive disorder, recurrent, moderate. The plan included initiating a trial of Mirtazapine. He indicated he wished to be discharged the next day to get back to work. A discharge note reflects he was also prescribed Trazodone if needed for sleep. A March 2018 outpatient psychology note reflects the Veteran presented for follow-up two days after his hospital discharge, reporting that “things have been steadily improving after his release from the inpatient unit.” On mental status examination, his mood was euthymic. He denied any suicidal or homicidal ideation, intent, or plan on direct questioning. He failed to appear for a follow-up visit, which was rescheduled twice. Subsequent VA treatment records reflect he did not seek further treatment with mental health providers. In December 2018, the Veteran was afforded a VA examination to evaluate the severity of his service-connected major depressive disorder. He related that he and his ex-wife divorced in one year earlier, then he briefly lived along before moving back with his ex-wife “for financial reasons.” He described a good relationship with his daughter, going to church once or twice a month, and enjoying going “out to eat” in his free time. He reported he was self-employed and worked from home, allowing him the ability not to socialize, adding that he had had a customer service company for the last ten years and “it’s going fine.” He stated that he also continued to run a nonprofit organization. The examiner explained that the Veteran continued to report symptoms consistent with avoidant personality disorder. He also reported problems with his memory and concentration. He stated that his mood “depends on the day” and indicated that he was taking Mirtazapine, which helped him sleep. He denied any current suicidal or homicidal ideation but related having passive suicidal ideation in [March] 2018 and checking himself into the VA emergency room. He denied any clinically significant impairment in his daily functioning. On mental status examination, the Veteran was dressed appropriately and had good hygiene; he was fully oriented and cooperative throughout the interview; eye contact was appropriate; speech was within normal limits for rate, tone, volume, and prosody; there was no evidence of hallucinations; judgment was good; mood was stated as “okay;” and affect was euthymic. The outcome of the BDI indicated severe depression symptoms in the past two weeks; the outcome of the BAI indicated severe anxiety in the past week. In February 2019, the AOJ asked the December 2018 VA examiner to delineate the symptoms between the Veteran’s avoidant personality disorder and his service-connected major depressive disorder. The examiner explained in detail that the Veteran does not meet the diagnostic criteria for major depressive disorder and this diagnosis was given in error. A March 2019 rating decision continued the 50 percent rating that had previously been assigned for major depressive disorder and explained that although the December 2018 VA examiner opined that the Veteran did not have a current diagnosis of major depressive disorder, the disability and rating assigned were protected. During a May 2019 VA primary care visit, the Veteran reported that he had been taking Mirtazapine for depressive symptoms and found it helpful for sleep and had been taking diphenhydramine (Benadryl). He was unable to quantify any major change in his mood since starting, believing that his prior mood was situational. He reiterated that the medication had been most helpful for sleep. He also reported decreased libido and endorsed having panic attacks. The plan included discontinuing Mirtazapine at the Veteran’s request, although the physician noted her concern that his depressive symptoms may recur after going off the medication; continuing diphenhydramine; and adding Trazodone as needed for sleep. A June 2019 pharmacy telephone note reflects the Veteran’s report that his mood was “fine” since discontinuing Mirtazapine. He stated he was doing well, he denied depressive symptoms, and did not believe he needed another antidepressant at this time. No anhedonia or apathy was noted, and he denied any suicidal or homicidal ideation. Having considered the medical and lay evidence of record, initial ratings higher than the noncompensable rating assigned from May 14, 1987, through March 2, 2009, and the 50 percent rating assigned from March 3, 2009, through March 25, 2020, are not warranted at any time during the appeal. From May 14, 1987, through March 2, 2009, the evidence shows the Veteran did not have a diagnosed depressive neurosis, neurotic or depressive symptoms that may somewhat adversely affect relationships with others, or a mental disorder that had been formally diagnosed (other than congenital avoidant personality disorder). Accordingly, the criteria for even a noncompensable rating are not met under the applicable regulatory criteria prior to and since the February 3, 1988 revision, or since the November 7, 1996 revision. Even considering the retrospective VA expert psychiatrist’s opinion from September 2016 that the current depressive disorder had its onset in service, the medical and lay evidence of record prior to March 3, 2009, reflects that the Veteran’s symptoms were related to his congenital personality disorder. He described his lack of confidence in relating socially and described accompanying symptoms of nervousness and sweaty hands. The Veteran did not describe symptoms of depression during this time period, including periods of recurrent depression, and the examining psychiatrist in November 1987 specifically noted that the Veteran did not demonstrate any depression or any other behavioral abnormality to a clinical degree on examination. Instead, mental status examination was within normal limits. In addition, even if the Board assumed that the Veteran had a diagnosed depressive neurosis or depressive disorder prior to March 3, 2009, the contemporaneous evidence of records indicates he did not experience emotional tension or other evidence of anxiety productive of moderate or mild social and industrial impairment (other than some reported anxiety associated with his congenital avoidant personality disorder), he did not require continuous medication to control depressive symptoms, and depressive symptoms were not shown to cause occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks during periods of significant stress. The evidence prior to March 3, 2009, documents the Veteran’s statements that he worked in a stock room, as a truck driver, and as a minister since separation from service and that he was laid off from a job in early 2004. Finally, although the Veteran reported during a February 2010 VA examination that he had had approximately 100 jobs or more since 1986, including 50 within the last few years, that degree of occupational instability is not supported by contemporaneous evidence of record, including his statements to treatment providers. Also, the February 2010 explained that the Veteran’s avoidant personality disorder his impacted his occupational functioning only when he was unable to work from home, but while he was able to work from home, he had “functioned very well occupationally.” In conclusion, from May 14, 1987, through March 2, 2009, a compensable rating is not warranted at any time for major depressive disorder superimposed on congenital avoidant personality disorder. Considering the period from March 3, 2009, through March 25, 2020, the Veteran’s major depressive disorder superimposed on congenital avoidant personality disorder has been manifested at worst by intermittent depressed mood, low energy, sleep impairment, poor concentration, increased appetite, intermittent anhedonia, fair to poor insight, and an episode of blunted affect with passive suicidal ideation without plan or intent in March 2018 that coincided with his recent divorce and moving out of the family home. (Although he often described perceived memory impairment, mental status examination findings documented intact memory function). These findings more nearly approximate the criteria for the 50 percent disability rating currently assigned for the period from March 3, 2009, through March 25, 2020. A higher, 70 percent rating is not warranted at any time from March 3, 2009, through March 25, 2020, because the Veteran’s major depressive disorder superimposed on congenital avoidant personality disorder has not been manifested by “particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (describing when a veteran may qualify for a given disability rating under [38 C.F.R.] § 4.130). For example, the evidence of record indicates the Veteran’s major depressive disorder has not been manifested by obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control; 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. Here, the evidence shows that the Veteran’s nonservice-connected congenital avoidant personality disorder has caused difficulty in social settings, difficulty in traditional work settings in which he has to interact in-person with more than one person at a time, and difficulty establishing and maintaining effective relationships. His depressed mood is not shown to have caused these difficulties. Moreover, the evidence shows that the Veteran has effectively adapted to stressful work settings by maintaining self-employment performing customer service duties while working from home at least since 2008 according to his reports to VA examiners. In addition, he has established and maintained an effective relationship with his daughter and although he and his ex-wife divorced in 2018, she allowed him to move back in with her and their daughter. Regarding the Veteran’s blunted affect and suicidal ideation documented in March 2018, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017) (Emphasis in original). Furthermore, the Board reiterates that when evaluating a mental disorder, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission. The rating agency shall 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 the examination. 38 C.F.R. § 4.126(a). In this case, the evidence of record shows a period of increasing depression since the Veteran and his wife’s divorce, culminating in a brief period in March 2018 in which the Veteran experienced suicidal ideation without intent or plan. Following his two-day inpatient hospitalization, he reported that his symptoms were improving, he denied suicidal ideation on direct questioning, he chose to discontinue the anti-depressant medication that had been prescribed during that hospitalization, and a subsequent depression screening was negative in May 2019. The Board recognizes that the 70 percent rating criteria do not require a particular number of episodes, or specific duration, of suicidal ideation and do not require that suicidal thoughts be accompanied by intent or plan. In addition, the General Rating Formula for Mental Disorders does not require a particular number of symptoms from each disability level to find that a claimant’s symptoms more nearly approximate a particular disability level. The criteria for a 70 percent disability rating, however, do contemplate types and degrees of symptoms with a greater persistence and duration than shown by the Veteran’s symptoms. For example, the 70 percent criteria contemplate a severity and duration of mood disturbance (near-continuous panic or depression) that affects a veteran’s ability to function independently, appropriately, and effectively. The VA treatment records suggest the Veteran experiences depression intermittently (and anxiety symptoms related to his personality disorder); he is able to satisfactorily maintain his activities of daily living; and other reported symptoms such as low energy, poor concentration, sleep impairment, and intermittent anhedonia have not resulted in occupational and social impairment with deficiencies in most areas. Again, despite the Veteran’s report to a February 2010 VA examiner that he had had approximately 100 jobs or more since 1986, including 50 within the last few years, in other statements, which are internally consistent, he reported that he had been working from home for many years, including customer service work through self-employment since at least 2008. In other words, the frequency, severity, and duration of the Veteran’s depressive symptoms have not resulted in the degree of occupational and social impairment contemplated by the 70 percent rating criteria, and the brief episode of suicidal ideation March 2018 is shown to have interfered with the Veteran’s work only briefly. Notably, during his two-day hospitalization for suicidal ideation and depression, he reported improved symptoms and requested to be released so he could return to work. In December 2018, he told a VA examiner that his work was “going fine.” The instance of suicidal ideation in March 2018, preceded and followed by depressive symptoms consistently and more nearly approximate the criteria for the 50 percent rating assigned during this period, is insufficient to warrant a higher, 70 percent rating for major depressive disorder. As the preponderance of the evidence is against the Veteran’s claim for higher initial ratings than those assigned for major depressive disorder superimposed on (Continued on next page) congenital avoidant personality disorder, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Kirscher Strauss 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.