Citation Nr: 21012689 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 17-56 306 DATE: March 5, 2021 ORDER Entitlement to a rating greater than 30 percent for major depressive disorder prior to January 8, 2018, and greater than 50 percent thereafter is denied. FINDINGS OF FACT 1. Prior to January 8, 2018, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. 2. After January 8, 2018, the severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to January 8, 2018, the criteria for a disability rating in excess of 30 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. After January 8, 2018, the criteria for a disability rating in excess of 50 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, (DC) 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1974 to December 1977. The claim was most recently before the Board in December 2020 when it was remanded for additional development. The Board is satisfied that there has been substantial compliance with the December 2020 remand directives and the Board may proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a rating greater than 30 percent for major depression prior to January 8, 2018, and greater than 50 percent thereafter Ratings for service-connected disabilities are determined by comparing the veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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). The issue before the Board is whether the Veteran’s associated symptoms caused the level of impairment required for a disability rating greater than 30 percent prior to January 8, 2018 and greater than 50 percent thereafter. The Board concludes that the Veteran’s symptoms did not cause the level of impairment required for a disability greater than 30 percent before January 8, 2018 or greater than 50 percent thereafter. 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 when symptoms such 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 cause total occupational and social impairment. In the May 2017 rating action on appeal, service connection was granted and an initial 30 percent rating assigned, effective December 28, 2016. In a June 2020 rating decision, the rating was increased to 50 percent, effective January 8, 2018, the date of a VA examination. Period Prior to January 8, 2018 Private treatment records, the May 2017 VA examination, and the Veteran’s lay statements show that his service-connected psychiatric disability manifested symptoms associated with a 30 percent rating (depressed mood, anxiety, chronic sleep impairment and difficulty with concentration) although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. The Veteran reported that has a limited social life that revolves around church and family activities. The Veteran started working at GE in Wilmington in 1979. He stayed with them for 35 years until he retired in February 2014. He does not report any problems on the job. “I have never had something major, no disciplinary action.” The Veteran also reported to the examiner that he felt helpless, fatigued, unmotivated, with a tendency to procrastination, lack of excitement about life activities, aggravated, and erectile dysfunction that he has tried to repair with surgeries, to no avail; this causes him to feel depressed. The Veteran also had some symptoms associated with a 50 percent or greater rating (flattened affect disturbances of motivation and anxiety attacks, irritability and anger issues). He also had symptoms that are not listed with a specific rating, such as, fatigability and feelings of low self-worth. These symptoms more closely approximate a 30 percent disability rating under 38 C.F.R. § 4.130, DC 9434. The Veteran’s private mental health provider documented the Veteran’s appearance at a January 2017 intake assessment as having normal speech, flat affect. His thought process did not manifest flight of ideas, or looseness of association. The Veteran denied any auditory, visual and tactile hallucinations. He also denied suicidal and homicidal thoughts. The Veteran did report problems with his memory. A higher 50 percent rating during this period is not warranted because the level of impairment related to the Veteran’s disability does not meet or more closely approximate the criteria for a 50 percent raging. There is no evidence of an impact on the Veteran’s speech or cognitive abilities. He reported a limited social life, revolving around church and family, but has not shown difficulty in establishing and maintaining relationships. There is no evidence that the Veteran’s major depressive disorder manifest symptoms of 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 in establishing and maintaining effective work and social relationships. Therefore, a rating greater than 30 percent for the period prior to January 18, 2018 is not warranted. Period Beginning January 18, 2018 The 50 percent rating was made effective the date of a January 2018 VA examination. The examiner characterized the impact of the Veteran’s major depressive disorder as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The specific symptoms identified by the examiner were depressed mood, anxiety, flattened affect and disturbances in motivation and mood. The examiner observed that the Veteran had mild speech with logical thought process. The Veteran denied any auditory and visual hallucinations and or delusions. He also denied any suicidal, self-harm and or homicidal ideation, thought plan and or intent. Additional private mental health treatment records associated with the record show that in April 2019, the Veteran’s symptoms included depressed mood; anxiety; suspiciousness, chronic sleep impairment, mild memory loss (forgetting name, directions or recent events), flattened affect, disturbances in motivation and mood, difficulty in establishing and maintaining effective social relationships, and difficulty adapting to stressful circumstances, including work and a work like setting. The Veteran was given a VA examination in October 2020. The examiner characterized the impact of the Veteran’s major depressive disorder as 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 medication and that the Veteran manifested symptom was depressed mood. During the examination, the Veteran reported getting along with all friends and family well. The Veteran reported to the examiner that sometimes he experiences sleep disturbance, and reported taking Trazodone as needed for sleep, noting “it helps.” He also reported feeling “sad sometimes but I do the best I can” and reported feeling better since taking his medications regularly. In November 2020, the Veteran submitted a private opinion from his treating mental health provider. His provider stated that the Veteran is affected by his depression, causing him to feel anxious, unsafe and on high alert. His depression has compromised his trust and intimacy with others. The recent COVID-19 virus pandemic has also affected the Veteran as he has been avoiding people and family more than usual and is extremely worried about getting the virus. As a result, he is feeling more loneliness and isolation. The Veteran’s provider also reported that the Veteran feels angrier and more irritable because he cannot do activities that normally help him blow off steam, and cope with daily living and frustration. The Veteran’s treating mental health provider opined that the Veteran’s “condition has not worsened it is defiantly [sic] is not getting any better.” VA and private treatment records, private opinions and the January 2018 and October 2020 VA examinations show that the Veteran’s major depressive disorder manifested symptoms associated with a 50 percent rating beginning January 2018. The symptoms reported were depressed mood, anxiety, suspiciousness, panic attacks more than once per week chronic sleep impairment, disturbances of motivation and mood, mild memory loss and difficulty in establishing and maintaining effective work and social relationships). The Veteran reported that he is getting along with all friends as family well. He also has symptoms associated with a 70 percent or greater rating (difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships). A higher 70 percent rating is not warranted at any time during the appeal period because the evidence does not show that the Veteran’s disability resulted in occupational and social impairment, with deficiencies in most areas. There is no evidence that the Veteran’s major depressive disorder manifest symptoms of 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 or neglect of personal appearance and hygiene. VA examinations during this period have characterized the related impairment as, at worst, 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. While the November 2020 private assessment noted the impact of the COVID-19 pandemic on the Veteran, the provider ultimately concluded the Veteran was not getting worse. There was no evidence of impairment in most areas of the Veteran’s life. (Continued on the next page)   Accordingly, the evidence is against finding that the symptoms manifested by the Veteran’s major depressive disorder support a rating greater than 30 percent prior to January 8, 2018 and greater than 50 percent thereafter. Therefore, the claim for an increased rating is denied. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. G. Perkins, 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.