Citation Nr: 21013885 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-12 983 DATE: March 10, 2021 ORDER Entitlement to an initial evaluation of 30 percent, and no higher, for unspecified depressive disorder is granted. FINDING OF FACT Throughout the period on appeal, the Veteran’s depressive disorder has manifested by symptoms which most closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial increased evaluation of 30 percent, and no higher, for depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1 – 4.7, 4.21, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1977 to July 1980. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2018 rating decision by the December 2013 rating decision by the Nashville, Tennessee Regional Office (RO) of the United States Department of Veterans Affairs. The matter was before the Board previously, in May 2020 at which time it was remanded for additional development. In that decision, the Board determined that the Veteran’s attempt to opt-in to the modernized appeals system was unsuccessful as he did not check on his Decision Review Request: Supplemental Claim form, VA Form 20-0095, indicating he was opting in from the Statement of the Case. Therefore, his election was not valid, and his appeal remained in the legacy system. This was affirmed in November 2020 correspondence; the Board notes the Veteran has not again attempted to opt-in to the new Appeals Modernization Act (AMA) system at subsequent opportunities. Duty to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case; appropriate notice was provided in the Fully Developed Claim form filed by the Veteran in November 2017. The RO associated the Veteran’s service and VA private outpatient treatment records with the claims file. All released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. Appropriate and necessary examinations were afforded the Veteran, and are adequate for evaluation, as they include needed findings to permit application of the rating schedule and identification of current disability. As such, VA has satisfied its duty to assist with the procurement of relevant records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s service-connected depressive disorder has been assigned a disability rating of 10 percent under 38 C.F.R. § 4.130, Diagnostic Code 9434. The Veteran contends that a higher disability evaluation is warranted for his depressive disorder. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant’s capacity for adjustment during periods of remission. VA 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). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Pursuant to 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders (“General Rating Formula”). A 10 percent evaluation is warranted where 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 warranted for 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, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where 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 in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted where 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 rating is warranted when there is 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 426, 442 (2002). Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. VA treatment records show that in December 2017 the Veteran was seen due to a single episode of depression. He reported that he felt his depression was new; he stated he was not able to do his work due to his hand and back problems. He was tearful and reported recent sadness. He denied suicidal ideation, plan and intent and was willing to engage in mental health services. Mental status examination revealed him to be alert and oriented in all spheres; grooming and hygiene were casual; reported mood as “good”; affect was incongruent; tearful at times; speech was normal, spontaneous and clear. No evidence of perceptual or thought abnormalities. Thought processes were linear, logical and goal directed; insight and judgment were grossly intact. He denied suicidal and/or homicidal ideation and no acute risk factors were present. A February 2018 mental health treatment note reflected the Veteran felt he was doing better. He was more optimistic and hopeful for his future. He rated his level of depression as a 2 on a scale of 1 to 10, with 10 being the worst imaginable and his level of anxiety as a 5. The Veteran was well-groomed, casually dressed. He was cooperative and mood was good. Affect was appropriate; judgment, insight and attention/concentration were fair. The Veteran denied suicidal or homicidal ideation. The Veteran underwent a VA contract mental disorders examination in March 2018. The VA contract examiner noted the Veteran’s diagnosis of unspecified depressive disorder. The VA contract examiner summarized the Veteran’s occupational and social functioning as a mental condition having been formally diagnosed, but symptoms are not severe enough to either interfere with occupational and social functioning or to require continuous medication. The Veteran reported that he was divorced and was in a companionable relationship. He had a daughter in college and two stepchildren. His relationships are “pretty good” but could be better. He reported that he had one friend but doesn’t hang out or even talk much. He gets along with his sister and talks with older people in his neighborhood. The contract examiner noted symptoms including depressed mood. He was on time for his examination, casually dressed and exhibited adequate grooming and hygiene. He was polite, pleasant and cooperative. He talked easily, although at times was somewhat obscure and irrelevant. He reported experiencing depression and low self-worth; affect was labile with bouts of weeping interspersed with normal affect and laughter. He denied suicidal and homicidal ideation. No auditory or visual hallucinations were reported. Memory was intact and concentration was fair. Other symptoms included “worries; low self-esteem/feels loss of purpose (feels “irrelevant”) due to being unable to work. The Board finds that the Veteran’s depressive disorder symptoms meet the criteria for a 30 percent disability evaluation. The symptoms are consistent with those productive of occupational and social impairment with occasional decreased in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routing 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. The Veteran’s symptoms primarily consist of depression and anxiety. While the March 2018 contract examiner noted the Veteran’s speech as was somewhat obscure and irrelevant at times, he has not exhibited symptoms such as a flattened affect, circumstantial, circumlocutory or stereotyped speech. The Board finds that Veteran’s symptoms most closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, the criteria associated with a 30 percent disability evaluation. The preponderance of the evidence does not support the criteria for a 50 percent or greater disability rating. The Veteran has not expressed or exhibited circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long- term memory; impaired judgment; or impaired abstract thinking. There is no indication in the medical records that his symptoms are severe enough to cause occupational and social impairment with reduced reliability and productivity; therefore, a 50 percent rating, or higher, is not warranted. See Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran “may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). The criteria for a 30 percent disability evaluation, and no higher for the Veteran’s service-connected depressive disorder are met. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.