Citation Nr: 21014883 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 15-27 991 DATE: March 16, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for depressive disorder is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran’s symptoms did not more closely approximate total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating in excess of 70 percent for unspecified depressive 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 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from May 1989 to August 1989. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2016 rating decision issued by a decision review officer on review of a July 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case has been before the Board twice before. In August 2018 this issue was remanded to the agency of original jurisdiction (AOJ) for additional development. At the time of appeal no statement of the case (SOC) had been issued. This matter returned to the Board in October 2020 and was again remanded for additional development to include a review of all new materials added to the claim since the December SOC including the May 2019 VA examination. This case has now been returned to the Board for further appellate action. The Board also notes that, in July 2020, the Veteran’s attorney withdrew as her representative. The Veteran was notified of the withdrawal and allowed a period of time for response. As such, the Board recognizes the Veteran as proceeding pro se in this matter. Initial Increased Rating - Depressive Disorder The Veteran asserts that he should have a higher rating for her depressive disorder as her symptoms are worse than those contemplated by the currently assigned rating. 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). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. The evidentiary record does not reasonably raise the prospect that the Veteran’s disability is not and cannot be adequately rated under the Rating Schedule. The Veteran is currently assigned a 70 percent disability rating for her service-connected unspecified depressive disorder under Diagnostic Code 9434, which assigns ratings based upon the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 70 percent 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 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, or 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; and the inability to establish and maintain effective relationships. Id. A maximum 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 own name. Id. The symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list. Rather, the symptoms 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 (2002). Turing to the evidence, the Veteran initially submitted her claim in May 2014. Her partner for many years submitted a buddy statement explaining the change that the Veteran has undergone since her service-connected injuries to her legs. The Veteran was a runner prior to entering service and took great joy in this activity. Her partner noted that these injuries have crushed her spirit and that the Veteran often wakes up crying due to pain in her legs. Additionally, the Veteran feels sadness because she can’t do many of the activities that she would like to do with her child. The Veteran herself indicated in a January 2016 Disability Benefits Questionnaire (DBQ) that she hates her life and is miserable. She notes that she can perform the majority of her tasks but that she finds that to complete simple tasks takes her much longer than normal. She states that prior to her military service she was outgoing, happy, athletic, and hard-working. She noted that everyday tasks are harder/more stressful for her now. She attributes this to the leg injuries she suffered while in service which is the cause of her depression. At her July 2016 VA examination the Veteran reported daily intrusive thoughts regarding her childhood trauma. Additional symptoms included sadness, anxiety, anger, and nausea. She complained of hypervigilance and avoiding crowds due to anxiety. She noted yelling at others when angry. At this examination the Veteran was diagnosed with two separate mental conditions. She was diagnosed with the depression as secondary to her service-connected leg injuries as well as PTSD. The examiner stated that the anxiety, arousal, avoidance, and re-experiencing symptoms are all related to the Veteran’s PTSD and not the depression. The depressed mood, low energy and motivation are all related to the Veteran’s depressive disorder. The Veteran described her relationship with her son as good but that her low energy impacts her involvement with their relationship. She reported having friends she regularly spends time with and gets along with. She reported suicidal ideation on most days but no plans or intent. The examiner found that the Veteran exhibited mild or transient symptoms which decrease work efficiency. The Veteran’s next VA examination took place in May 2019. The Veteran was found to have low mood, suicidal ideation, and low energy due to her depression. Additionally, the PTSD and the depression cause anxiety, excessive worry, and poor concentration. The Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran noted that she cries every day. She noted a good relationship with both her long-time boyfriend and her son. She maintained good relationships with her friends. The Veteran stated she avoided family gatherings, but this is because of the abuse she suffered at the hands of her stepfather which is the cause of her PTSD (rather than her military service). The Veteran was taking no medications but had plans to begin counseling at the end of the month. She continued to complain of suicidal ideations but noted that she would act on these thoughts because of her son. The Veteran was noted as being well groomed, had a pleasant attitude, an appropriate affect, logical thought, and was not experiencing delusions or hallucinations. The Veteran had good judgment, could handle her own financial affairs, and reported some memory problems but nothing severe. The Veteran denied panic attacks. She was found to be competent and was able to function independently at home. In an April 2020 treatment note at the Manchester VA the Veteran denied both suicidal and homicidal ideations. She noted that she uses marijuana to help with her anxiety and depression. She also noted that she was no longer following up with her mental health counselor. Based on the foregoing, the Board finds that the Veteran is not entitled to a rating in excess of 70 percent for her depressive disorder. In that regard the Board finds that for that period the occupational and social impairment resulting from the Veteran’s depressive disorder was manifested by deficiencies in most areas with symptoms such as suicidal ideation, near-continuous depression, and difficulty in adapting to stressful circumstances. In order to receive the higher 100 percent rating the Veteran would need to show total occupational and social impairment including gross impairment in thought process, persistent delusions or hallucinations, grossly inappropriate behavior and a persistent danger of hurting herself and others. The Board acknowledges that the record reflects a history of suicidal thought. While the Veteran did report some issues of suicidal ideations, she also indicated in her January 2016 DBQ as well as her May 2019 VA examination that she had no intention of following through due to the relationship with her son. Suicidal ideation is recognized as being supportive of a 70 percent disability rating, although if it is persistent might be supportive a 100 percent rating which contemplates peristent danger of hurting self. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the Board does not find the severity, frequency, and duration of any suicidal ideation has risen to the level contemplated by the 100 percent rating, as the Veteran has consistently denied any attempt or planning of self-harm. Further, while she does not work, the record does not show that her inability to work is solely the result of the depressive disorder. Additionally, the records indicate that the Veteran maintains ownership of a property as a landlord. Further, there is no significant symptoms of speech impairment, impairment of thought processes, impairment of judgment, or impulse control. There is no indication that the Veteran is unable to perform activities of daily living. She does not have delusions or hallucinations. There is no indication that she has obsessional rituals that interfere with her ability to perform activities of daily living. Additionally, the VA examination from July 2016 found that the Veteran’s re-experiencing symptoms are most likely related to the Veteran’s non-service-related PTSD and not the Veteran’s depression. The Veteran has denied panic attacks, and there is no indication in the record that the Veteran is completely unable to care for herself or is disoriented. Finally, the Board acknowledges that the Veteran is in receipt of a total disability rating based on individual unemployability due to service-connected disabilities (a TDIU) as of the effective date of her depressive disorder. However, a 100 percent evaluation under Diagnostic Code 9434 requires total occupational and social impairment, which is an entirely different standard from the showing of the inability to secure and follow a substantially gainful occupation for TDIU purposes. See 38 C.F.R. § 4.16. As noted above, the Veteran has reported good relationships with friends and family. Therefore, when the Veteran’s disability picture is considered as a whole, the Board finds that her symptoms do not more closely approximate total occupational and social impairment at any point during the period on appeal. Thus, the claim for an increased rating must be denied. The Board is sympathetic to the Veteran’s lay statements that her disability is worse than currently evaluated and those statements have been considered. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to her through her senses. Layno v. Brown, 6 Vet. App. 465 (1994). She is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined her during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Neither the Veteran nor her representative has raised any other issues, nor have any other issues been reasonably raised by the record. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Andrew Ledman II 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.