Citation Nr: 21012135 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-19 357A DATE: March 3, 2021 ORDER Entitlement to an initial rating in excess of 50 percent for major depressive disorder (MDD) is denied. FINDING OF FACT For the entire rating period on appeal, the Veteran’s major depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity. CONCLUSION OF LAW The criteria for entitlement to an initial rating in excess of 50 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.10, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from February 1986 to April 1986, and on active duty from February1991 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) from a rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). This appeal was previously before the Board in September 2018, and a rating in excess of 50 percent for MDD was denied. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). The Court vacated the September 2018 Board decision in an October 2019 decision. In April 2020, the Board remanded this matter for additional development. The AOJ substantially complied with the Board remand directives, and the appeal has been returned to the Board for appellate review. 1. Major Depressive Disorder The Veteran contends that her service-connected MDD is more severe than was initially rated. The Veteran has been assigned a 50 percent rating pursuant to the provisions of Diagnostic Code 9434, MDD effective October 18, 2014. Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1995); 38 C.F.R. § 4.1. The Veteran’s MDD is rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula, 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 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent disability 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent disability rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross 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. The symptoms listed in the rating schedule 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. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are associated with objectively observable symptomatology, and in Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) stated that “a veteran may only qualify for a given disability rating under Section 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” The Federal Circuit further noted that Section 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 117. Thus, “[a]lthough the veteran’s symptomatology is the primary consideration, the regulation also requires an ultimate factual conclusion as to the veteran’s level of impairment in ‘most areas.’” Id. at 118. Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual of Mental Disorders, 4th Edition (DSM-IV). The amendments replace those references with references to the recently published Fifth Edition (DSM-5). See 80 Fed. Reg. 53, 14308 (March 19, 2015). This claim is governed by the DSM-5. In March 2015, the Veteran underwent a VA psychiatric examination to assess the severity of her MDD. The Veteran reported that she was not receiving any mental health treatment. The VA examiner diagnosed the Veteran with major depressive disorder, recurrent, severe without psychotic features. The examiner found that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner also found that the Veteran had symptoms of depressed mood, chronic sleep impairment, flat affect, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work-like setting. She also reported symptoms of crying spells, social isolation, lack of motivation, staying in bed for long periods. Upon a mental status examination, the Veteran presented fully oriented and aware as well as neatly groomed. In a July 2015 the Veteran’s private provider, Dr. K.U., stated that the Veteran stopped working due to back pain, fatigue, crying spells and depression. Dr. K.U. also opined that the Veteran was unemployable due to these symptoms. The Veteran underwent another VA psychiatric examination in July 2015. The examiner diagnosed the Veteran with major depressive disorder, single episode, moderate. Id. The Veteran’s current symptoms were noted to include depressed mood, chronic sleep impairment, and difficulty establishing and maintaining effective work and social relationships. Id. The examiner noted that the Veteran’s psychiatric symptoms caused mild to moderate impairment in her overall functioning. The Veteran reported that she lived alone, had little contact with her children, and denied a close relationship with her siblings. She also reported her physical limitations contributed to her depressed mood. Id. She further reported she attended church once a week but denied any other social activities. The examiner opined that the Veteran’s psychiatric symptoms would not preclude physical activities for sedentary work. However, “[d]epressed mood, concentration problems, sleep disturbance, and fatigue could contribute to motivation problems and difficulties sustaining concentration.” Id. The examiner found the Veteran’s symptoms could have a mild to moderate impact on her ability to attend to work related tasks, maintain effective interpersonal relations, and adapt to stressful situations. The Veteran denied anger, and any suicidal or homicidal thoughts. On mental status examination, the Veteran presented as cooperative with good hygiene and grooming. Her speech was “somewhat slow but within normal limits in tone, volume, and production. She also had appropriate eye contact, and was alert and oriented in four spheres. Although some psychomotor retardation was observed, there were no attention or concentration problems noted on examination and the Veteran answered questions involving recent presidents, serial threes, spelling words without any errors. Finally, there was no evidence of hallucinations, delusions, or paranoia. In March 2016, Dr. K.U. stated that the Veteran’s major depressive disorder symptoms worsened. The Veteran reported that she was “very depressed and emotional at all times.” Id. She was also noted to isolate herself and as being unable to handle being around others. Dr. K.U. also noted that the Veteran lived alone and that her mental health had not improved. In September 2019, the Veteran reported that she had been very sad lately. The Veteran indicated that her daughter had gone to great lengths to find things to keep her mood from becoming too low. The Veteran reported that her daughter planned a family vacation, but the Veteran did not want to go because she was in a lot pin and her mood was getting worse. The Veteran reported she did not want to be around anyone. The Veteran stated her grandson came to her house several times during the week to help her with things, but she still struggled with daily living tasks. In November 2019, private treatment records indicate that the Veteran had felt sad and lonely. The Veteran stated she was not as close with her family members as she used to be. The Veteran reported feeling isolated. The Veteran stayed at home most of time. The Veteran stated that the relationship between her grandson was growing distant. In April 2020, the Veteran reported that she was worried about her health and her family’s health due to COVID. The Veteran reported that her depression seemed to worsen in the evenings and she needed human interaction. The Veteran reported that she had no energy and did not feel like doing anything. Dr. K.U. stated the Veteran was experiencing severe symptoms of depression. In May 2020, Dr. K.U. stated the Veteran’s symptoms of depression persisted. The Veteran reported exercising at home and walking in her neighborhood. In June 2020, Dr. K.U. presented with severe depression marked by uncontrollable crying, fatigue, loss of motivation, sadness, irritability, and self-isolation. In July 2020, the Veteran reported her sleep was broken with constant awakenings with nightmares. The Veteran reported that she felt tired during the day due to her sleep issues. However, the Veteran had been feeling better. The Veteran had been able to go outside and walk. The Veteran reported that she felt lonely and cried periodically throughout the day. The Veteran felt unsafe and isolated from her family. In August 2020, the Veteran stated she had a hard time controlling her emotions. The Veteran felt depressed a lot and her daughter tried to cheer up. In December 2020, the Veteran underwent another VA examination. The examiner diagnosed the Veteran with MDD moderate with anxious distress. The examiner found that the Veteran had symptoms of depressed mood; anxiety; chronic sleep impairment; flattened affect; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner found these symptoms caused occupational and social impairment with reduced reliability and productivity. During the examination, the Veteran reported that she lived alone for the past 14 years. The Veteran stated her brother checked in on her and she talked regularly with her daughter. The Veteran reported she stayed mostly at home and did not have close friends. The Veteran reported she retired in 2012. The Board acknowledges that when assessing the proper disability rating for a veteran’s acquired psychiatric disability, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran’s service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. See Vazquez-Claudio, 713 F.3d at 115-17. In this case, the Board determines that the Veteran’s symptoms do not warrant a 70 percent initial disability rating given that the evidence fails to show signs of suicidal ideation, obsessional rituals that interfere with routine activities, speech intermittently illogical, obscure, or irrelevant, near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, spatial disorientation, neglect of personal appearance or hygiene. Next, although the general rating formula provides specific examples of symptoms that may result from various acquired psychiatric disabilities, the Board emphasizes that its analysis should not be limited to only these symptoms and should include consideration of any other relevant criteria outside of the rating code in order to determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 444 (2002). Thus, the Board has also considered the extent to which there are other indications of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, including suicidal ideation, obsession rituals that 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 or hygiene, difficulty in adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The Veteran’s MDD was primarily manifested by depressed mood; anxiety; chronic sleep impairment; nightmares; concentration problems; mild memory loss; difficulty adapting to stressful circumstances; flattened affect; disturbance in motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The Board finds these symptoms did not cause occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The record indicates that although the Veteran felt socially isolated (even before COVID precautions) the Veteran had a close relationship with her daughter and grandson. The evidence did indicate that her symptoms caused her to isolate herself at times, however, the evidence does not demonstrate that she continued to maintain close and regular relationships with various relatives. Notably, she liked having her grandson come by her house, and expressed disappointment when he came around less and during the public health restrictions. The evidence in the record does not demonstrate that the Veteran’s symptoms of depression affected her ability to function independently, appropriately, and effectively. The Board notes that the Veteran did have difficulty in adapting to stressful circumstances. The record indicates that the Veteran lived alone and was able operate independently, albeit with some difficulties due to her other disabilities during COVID precautions. The record indicates that the Veteran during the COVID restrictions was able to mitigate its affects by being proactive in exercising. The Board deems operating independently and taking steps to mitigate the negative effects of public health restrictions tantamount to adapting to stressful circumstances. While the Veteran may have had difficulty with stressful circumstances due to her MDD, such difficulty does not rise to severity contemplated by a 70 percent disability rating. There is no indication that the Veteran’s symptoms impacted the Veteran’s judgement or thinking found as evidenced in her mental health status examinations. The Veteran’s private provider reported that the Veteran’s MDD caused the Veteran to be unemployable. However, Dr. K.U. indicated that it was in conjunction with her other disabilities. Notably, the Veteran is in receipt of a total disability rating based on individual unemployability due to the combination of all of her service-connected disabilities, both mental and physical. See July 2015 AOJ rating decision. Nonetheless, the Board observes that the Veteran’s symptoms did have an impact on her mood, with frequent episodes of crying spells. Dr. K.U. also indicated the Veteran’s symptoms were severe and she was depressed all the time. However, the Board finds the impact on the Veteran’s mood were not so severe that it caused occupational and social impairment in most areas because VA examiners in March 2015, July 2015, and December 2020 all found the Veteran’s symptoms caused occupational and social impairment productive of reduced reliability. In this regard, it is clear that the Veteran’s MDD has a significant impact on her social and occupational functioning as evidenced by her current rating. Nevertheless, the evidence does not indicate that an initial disability rating in excess of 50 percent is warranted. The Board has considered the Veteran’s lay statements concerning the symptoms of the service-connected disability and her medical history. The Veteran, as a lay person, is competent to describe observable symptoms because they come to her through her senses. However, her statements are not competent evidence as to the level of severity of a psychiatric disability. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). The VA examination findings and VA treatment notes are competent and credible evidence concerning the nature and extent of the Veteran’s psychiatric disability. The medical professionals examined the Veteran, and the VA examiners rendered pertinent opinions in conjunction with the evaluations. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disability and had sufficient facts and data on which to base the conclusion, the Board affords their opinions great probative value. Thus, based on the current record the Board does not find a rating of in excess of 50 percent is warranted. The Board also considered the Veteran’s argument that the AOJ did not properly consider Dr. K.U.’s evaluations. To the extent the Veteran suggests that Dr. K.U.’s opinion is entitled to more weight because she treated the Veteran, the Board notes there is no “treating physician rule” requiring the Board to give deference to treating doctors’ opinion over those of the VA compensation examiners. Both the Federal Circuit Court and Veterans Court have specifically declined to adopt a “treating physician rule” that would give preference to statements from a treating physician. See White v. Principi, 243 F.3d 1378 (Fed. Cir. 2001); Guerrieri v. Brown, 4 Vet. App. 467 (1993). See also Chisem v. Brown, 4 Vet. App. 169 (1993) (noting that there is no “treating physician rule” requiring the Board to give additional evidentiary weight to opinions of doctors who have evaluated or treated the Veteran over time). The Veteran argued that the GAF score assigned by Dr. K.U. indicated she had serious impairment rather than moderate impairment found by the VA examiners. Although, the DSM-5 no longer uses GAF scores, a GAF score need not be accepted as probative if it is determined that the score does not reflect the overall psychiatric disability at the time of the examination. See Evans v. West, 12 Vet. App. 22, 30 (1998) (citing Owens v. Brown, 7 Vet. App. 429, 433 (1995)). Notably, the VA examiners opinions directly address the applicable criteria used to rate the Veteran’s psychiatric disability. Thus, the Board finds that Dr. K.U.’s opinions are entitled to less weight than the VA examiners’ opinions because she failed to address the relevant rating criteria and opinions were not adequately supported by complete rationale. Therefore, the Board finds that the preponderance of the evidence is against a finding that the rating in excess of 50 percent is warranted. As the preponderance of the evidence is against the claim for an increase, the benefit of the doubt doctrine is inapplicable and the claim must be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.