Citation Nr: 21013627 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 17-01 693 DATE: March 10, 2021 ORDER Prior to December 5, 2019, a disability rating in excess of 70 percent for the service-connected depression with anxiety is denied. Beginning December 5, 2019, a 100 percent disability rating for the service-connected depression with anxiety is granted. FINDINGS OF FACT 1. Prior to December 5, 2019, the Veteran’s service-connected depression with anxiety has been manifested by no more than occupational and social impairment with deficiencies in most areas. 2. Beginning December 5, 2019, the Veteran’s service-connected depressive disorder has more nearly approximated total occupational and social impairment CONCLUSIONS OF LAW 1. Prior to December 5, 2019, the criteria for a disability rating in excess of 70 percent for the service-connected depression with anxiety have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. 2. Beginning December 5, 2019, the criteria for a 100 percent disability rating for the service-connected depression with anxiety have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously remanded by the Board in August 2019 for further development, which has been completed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an increased disability rating in excess of 70 percent for the service-connected depression with anxiety Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Service connection was originally established for depression with anxiety in an April 2008 rating decision, which assigned a 10 percent rating effective April 19, 2007, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. The rating was increased in a September 2012 rating decision, which assigned a 70 percent rating effective June 6, 2012. In September 2015, the Veteran filed his claim for an increased rating in his service-connected depression with anxiety and the December 2015 rating decision, which is the subject of this appeal, continued the 70 percent disability rating assigned. As the instant claim for increase was filed in September 2015, the relevant period for evaluation here is from September 2014 (one year prior to the receipt of the claim) to the present. Pursuant to the General Rating Formula for Mental Disorders, a 70 percent rating contemplates occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activity; speech intermittently illogical, obscure or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances and inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 100 percent rating is warranted where there is total occupational and social impairment, due to symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting 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 name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to 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, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). 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. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation based on social impairment. 38 C.F.R. § 4.126(b). VA mental health treatment records dated September 2015 show the Veteran endorsed frequent thoughts about being better off dead; however, he stated he was easily able to dismiss such thoughts and denied any plan or intent for suicide. A week later, he endorsed hallucinations and reported that he feels something tugging at his toe/foot when no one is there and that he sometimes hears radio sound when the radio is not playing. The clinician noted that these symptoms were added to the behavioral model as additional symptoms that come about when the Veteran’s depressive symptoms worsen. Upon November 2015 VA mental disorders examination, he reported his relationship with four of his children is pretty good. He also reported living alone and did not have family in Mississippi. He reported he does not deal with many people but noted that his daughter may check on him and that he has one good friend. The examiner noted he had limited social and family support. The Veteran further reported sleep problems, irritability, social isolation, persistent feelings of guilt, depression, and primarily stays in as it’s just too hard for him to go outside. He further stated that most of the time he is scared and worries, does not like to be around people and had no thoughts of suicide; however, he reported that last year he placed a gun in his mouth. He reported no homicidal thoughts. In addition, he reported persistent rumination, restlessness, negative thoughts, feelings of confusion, racing thought, feeling of anxiety, experiencing tactile hallucinations (someone pulling at his foot), and a fluctuating appetite. The examiner noted that overall, the Veteran continues to experience significant depressive symptoms with anxiety, has limited to no social support and is not motivated toward therapy. The examiner reported the Veteran with symptoms of depressed mood, anxiety, chronic sleep impairment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. Mental status examination revealed normal cognitive functioning; oriented to person, place, time and situation; anxious mood with congruent affect; alert, cooperative and tracked conversation well; concrete thought processes with thought content focused on responding to questions; fair eye contact; normal speech; restless motoric movements; steady gait; and appropriately groomed. The examiner summarized the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner diagnosed major depressive disorder with anxious distress. Per a November 2015 VA mental health treatment note, the Veteran reported auditory hallucinations and continued to report tactile hallucinations of someone pulling on his foot but stated that it was not as bad as it used to be. He reported his mind races all of the time causing him to be unable to think and that he continues to self-isolate. Mental status examination revealed spontaneous speech, anxious and blunted mood, and was positive for auditory and tactile hallucinations. Otherwise, mental status examination was normal. The clinician diagnosed the Veteran with recurrent major depressive disorder, panic disorder with agoraphobia and mood disorder due to general medical condition. The clinician prescribed Abilify. During a December 2015 visit, the Veteran reported improved mood with the addition of Abilify. Mental status examination was normal except for anxious and angry mood and positive for auditory hallucinations. The clinician diagnosed the Veteran with recurrent major depressive disorder, mood disorder due to psychological condition, panic disorder with agoraphobia and insomnia. In addition, Abilify was increased. Upon February 2016 VA mental disorder examination, the Veteran reported much of the same as he did on the November 2015 VA examination. Mental status examination was normal, except for sad mood and flat affect with limited range of affect and responses were mood-content congruent. The Veteran denied any suicidal/homicidal ideation. The examiner reported that the Veteran’s overall mental status examination was suggestive of normal cognitive functioning. The examiner stated there was not any evidence of hallucinations, delusions, loose associations, or flight of ideas. However, the Veteran did report feeling as if he was not alone, like someone is sitting next to him, feeling someone pulling at his feet, and hearing people trying to wake him up. He stated that sometimes he thinks he is dreaming but he is awake. He reported being anxious a lot but was not sure what he was anxious about. The examiner reported that although the Veteran did report some extra-sensory perception events, these were not clearly indicative of a hallucination in the true clinical term. The examiner summarized the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner diagnosed moderate major depressive disorder with anxious distress. The examiner remarked that the Veteran endorsed most experienced symptoms to the maximum rating; however, it seems the Veteran is functioning about the same as he was in the last two to three evaluations. The examiner reported that the Veteran’s depression caused moderate impairment in social functioning that reduces his desire to be around others. The Veteran’s symptoms will be present whether he is sitting or standing. Therefore, the likelihood of him functioning in a work-setting in a productive manner with his high level of depression is likely. In fact, working in an environment that is outside of isolation, predictable, and controlled is likely to decrease his symptoms. Therefore, the Veteran may function best in an employment setting with activities that he is not alone but with few individuals, have reduced environmental stressors, routine work hours and workload, and have the opportunity to readjust after periods of increased anxiety and depression. The examiner stated that research suggests appropriate social and occupational activities for individuals suffering from depression to reduce symptoms of isolation, anhedonia, guilt, anger, irritability, fatigue, hopelessness, cognitive slowing, worthlessness and pessimism and other symptoms of depression and anxiety. VA treatment records dated from February 2016 to February 2018 show the Veteran continuing to report much of the same as indicated on prior VA treatment records and examinations, to include reports of self-isolation and symptoms being reported as mostly unchanged. Although, he reported a decline in functioning after being unable to obtain his medication from the pharmacy and stated he started noticing he was becoming too emotional in May 2018. In addition, he related an increase in target symptoms without a significant change in psychological stressors at that time. In April 2019, he reported increased worry over a feeling of impending doom. He also reported his divorce was final and he thought that signing the papers caused some emotional turmoil. In August 2019, he reported that he is still very frequently fatigued and there are a lot of days he will not leave his bed. In November 2019, he endorsed daily anxiety attacks, not bathing for days, not going to get groceries until his kitchen is bare and becoming so anxious while there that he cannot stay long. In March 2020, he reported bathing is still sporadic and at times, he does not even realize it. He also continued reporting someone pulling at his feet. In June 2020, he reported that sleep was intact currently, and his mood was a bit flat, while his anxiety levels were the same. He reported doing fine isolating from the Covid virus, preferring being alone. Upon VA examination in December 2017, the Veteran reported no changes since he last underwent VA examination in February 2016. Mental status examination revealed normal findings, except the Veteran reported his mood to be “sad.” The examiner noted affect was flat with limited range, affect responses were mood-content congruent. The examiner reported that the Veteran with overall normal cognitive functioning. Over the past two week to month period, the Veteran reported his hands shake, feeling as if he is going to fall when he goes walking, being off-balance, weak for no reason, worrying all of the time without being sure of what he is worried about, not being able to remember where he put stuff at times and just being sad all of the time. He also continued to report hallucinations. The examiner summarized the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner diagnosed major depression with anxious distress. Upon VA examination on December 5, 2019, the Veteran reported that in the last two to three years, he has had a big change in himself. He reported staying away from outside as much as possible, his hygiene falling off a cliff because he cannot bring himself to keep up with it and being afraid and anxious all of the time. He stated he cannot go the grocery store anymore, so he has to send his sister. Mental status examination revealed normal findings, except the Veteran reported his mood to be “anxious.” The examiner noted affect was flat with limited range, affect responses were mood-content congruent. The examiner reported that the Veteran with overall normal cognitive functioning. He also continued to report hallucinations. In this regard, the Veteran reported having a feeling that a woman is in the room with him because he can smell her perfume which provided a calming effect but was not a familiar fragrance. He also reported that he thought it was his deceased cousin pulling at his foot because his cousin used to play around like that. The examiner summarized the Veteran with occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner diagnosed major depression with anxious distress. Resolving all doubt in favor of the Veteran, the Board finds that a maximum 100 percent rating has been more nearly approximated beginning on December 5, 2019, the date on which the Veteran underwent a VA examination and the Veteran reported his hygiene falling off a cliff because he cannot bring himself to keep up with it and reporting he cannot go the grocery store anymore, so he has to send his sister, while also continuing to report persistent hallucinations. Prior to December 5, 2019, the Board finds that a rating in excess of 70 percent is not warranted. The Board has considered the subjective symptoms reported by the Veteran with the objective evidence of record as reflected in the prior VA treatment records and VA examinations of record. Importantly, prior to December 5, 2019, while the Veteran had consistently reported hallucinations and the Board acknowledges his reports of not being able to remember where he put stuff at times during the December 2017 VA examination, not bathing for days and not going for groceries until his kitchen is bare in November 2019, there was no evidence of gross impairment in thought processes or communication, grossly inappropriate behavior, and/or persistent danger of hurting self or others. It was not until the December 2019 VA examination that the Veteran’s service-connected depression with anxiety was reported as being severe enough to the point that the Veteran could not go to the grocery store anymore. Prior to this date, although not easy, the Veteran was able to go to the store without sending someone else on his behalf. Considering this evidence, the Board finds that the severity of the Veteran’s overall depression with anxiety more nearly approximated the already-assigned 70 percent rating prior to December 5, 2019. 38 C.F.R. § 4.7. Thus, a higher rating is not warranted during the period of the claim prior to December 5, 2019. In summary, the Veteran’s service-connected psychiatric disability met the criteria for a rating of 100 percent from December 5, 2019, the date he first reported symptoms consistent with such a rating. However, the Veteran’s service-connected psychiatric disability did not meet the criteria for entitlement to a 100 percent rating prior to December 5, 2019. To the extent that the Veteran seeks ratings for the service-connected psychiatric disability higher than those awarded in this decision or previously awarded, the preponderance of the evidence is against the claim, and the claim must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). B. G. LeMoine Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.