Citation Nr: 21015221 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 16-49 960A DATE: March 17, 2021 ORDER Prior to June 20, 2016, an initial rating of 70 percent, but no higher, for depression with anxiety and insomnia is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Throughout the pendency of the appeal, the Veteran’s service-connected depression with anxiety and insomnia was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. CONCLUSION OF LAW Prior to June 20, 2016, the criteria for an initial rating of 70 percent for depression with anxiety and insomnia have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2002 through July 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2014 by a Department of Veterans Affairs (VA) Regional Office. In September 2019, the Veteran testified at a Board hearing before a Veterans Law Judge; a transcript of the hearing is associated with the record. The Veterans Law Judge who conducted the hearing is no longer with the Board. The Veteran was notified of this in a January 2021 letter in which she was provided with an opportunity to have another Board hearing and requested to respond within 30 days. The Veteran did not do so; thus, the Board will proceed with appellate review. This matter was first before the Board in November 2019, at which time the Board denied the Veteran’s claim for an initial increased rating for depression with anxiety and insomnia. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In August 2020, VA and the Veteran (the Parties) entered into a Joint Motion for Partial Remand (JMPR), in which they agreed that a vacatur of the Board’s November 2019 decision was warranted with respect to the denial of an initial rating in excess of 50 percent prior to June 20, 2016, for depression with anxiety and insomnia. The Court granted the Parties’ JMPR in an Order issued in September 2020. The matter has now been returned to the Board for further appellate review. The Board notes that the November 2019 Board decision also remanded the issues of service connection for a back disorder, a thyroid disorder, and menorrhagia. The Board also remanded the issues of entitlement to earlier effective date for the award of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) and the award of basic eligibility to Dependents’ Educational Assistance (DEA) as intertwined with the issues of service connection. The remand of these issues from the November 2019 Board decision is still pending as a supplemental statement of the case (SSOC) has not been issued addressing such matters. Relatedly, the Board also notes that the Court did not disturb the remands from the November 2019 Board decision. Thus, the Board defers readjudication of such issues at this time. Entitlement to a rating in excess of 50 percent for depression with anxiety and insomnia prior to June 20, 2016 The Veteran contends that she is entitled to an evaluation in excess of 50 percent for her service-connected depression with anxiety and insomnia prior to June 20, 2016. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. As noted above, the period at issue in this case is from May 2, 2013 and June 20, 2016. For the entire appeal period, the Veteran’s depression with anxiety and insomnia is rated under DC 9434, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130. Under the General Rating Formula, in pertinent part, a 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. 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; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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 or place; memory loss for names of close relatives, own occupation, or own name. Id. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez–Claudio v. Shinseki, 713 F.3d 112, 116–17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9434. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the Court held that the language of the general rating formula “indicates that the presence of suicidal ideation alone…may cause occupational and social impairment with deficiencies in most areas.” However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran’s service-connected psychiatric disability, and their resulting social and occupational impairment. Turning to the evidence of record dated during the period on appeal, in a February 2013 private treatment note, the Veteran reported suicidal ideation with no plan, intent, or history. She was severely depressed with mild anxiety, tearful, and moderately irritable or angry. She reported depression with crying spells, decreased concentration, mood swings, distractibility, and high irritability. She also reported having poor sleep and high anxiety. She denied having panic attacks or current suicidal ideations. She had been unemployed for a year and a half, and she was taking online classes. In another February 2013 private treatment note, the Veteran complained of depression and anxiety, as well as sleep problems. The examiner stated that stress and sleep problems were contributing factors to moderately severe depression and anxiety with passive suicidal ideation. In a March 2013 private treatment note, the examiner observed that the Veteran was highly distracted throughout her conversation and unable to remain on topic or remember what she was talking about. In an April 2013 private treatment note, the Veteran reported increased irritability and depression in the past week; she had been skipping meals and was not sleeping well. In another treatment note from a week later, the Veteran complained of depression and difficulty sleeping. She stated that she has difficulty falling asleep; but once she is asleep, she cannot wake up. She reported past thoughts of suicide without a plan; her last thought of suicide was the previous November or December. In a May 2013 private treatment note, the Veteran stated that she was depressed and tearful at times, and she was not sleeping well. In a March 2014 private treatment note, the Veteran reported depression, sleep disturbance, and stress. She had trouble with having a regular wake up time, healthy eating, and exercising. Her sleep varied from five to twelve hours. The examiner noted that, the day before, the Veteran had some thoughts of being better off dead. In a May 2014 VA examination for mental conditions, the VA examiner diagnosed unspecified depressive disorder and unspecified anxiety disorder. The examiner found that a mental condition had been formally diagnosed, but the symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran’s symptoms included depressed mood, anxiety, panic attacks weekly or less often, chronic sleep impairment, disturbances in motivation and mood, difficulty establishing and maintaining effective work and social relationships, and suicidal ideation. The May 2014 VA examiner further stated that the Veteran’s unspecified depressive disorder resulted in impaired sleep, disturbances of mood and motivation, and passive suicidal ideation. She also stated that the Veteran’s unspecified anxiety disorder results in occasional panic attacks and difficulty establishing effective social relationships. The Veteran was noted to be technically married but separated from her husband for 6 years; she had two children, whom she homeschooled. The Veteran was also noted to be taking online college courses in the evenings. At the May 2014 VA examination, the Veteran was cooperative, well-groomed, and casually dressed, as well as oriented to person, place, and time. Her eye contact and psychomotor activity were within normal limits. Her rate of speech was within normal limits, and her thought processes were linear and goal directed. She answered questions appropriately. Her mood was mildly depressed, and her affect was congruent with her mood. She did not demonstrate evidence of delusions or hallucinations. Her memory appeared to be within normal limits, and her insight and judgment appeared intact. She reported a history of fleeting, passive suicidal ideation; but the examiner stated that she convincingly denied current suicidal ideation, plan, or intent. In an October 2014 VA Primary Care Physician Note, the Veteran reported depression and panic attacks. She also noted that she has had suicidal thoughts in the past, with the last being one or two weeks ago, and it was not unusual for her to have suicidal ideations. In a December 2014 VA Primary Care Initial Evaluation Note, the Veteran acknowledged passive thoughts about death but denied any active suicidal or homicidal ideations, plan, or intent. The Veteran reported concerns with symptoms related to depression and anxiety. She reported a history of depressed mood, anhedonia, and crying episodes. She also reported having episodes once or twice a month in which she has trouble breathing and increased heart rate. In a January 2015 VA Social Work Note, the Veteran reported that she had been depressed. She also had a lot of anxiety, and she had panic attacks. She reported that, in 2013, she saw a non-VA psychiatrist two or three times; but her trust issues kicked in, and she stopped going. She also had pastoral counseling at her church. The Veteran reported that she worries constantly about things that she should not be worried about constantly. She reported panic attacks that occurred once or twice a month with symptoms of chest pain, shortness of breath or heavy breathing, confusion, and excessive sweating. She stated that, when she has a panic attack, she wants to die. She reported having thoughts of not wanting to be here when she was paying bills one month ago. The Veteran also reported that she is depressed more days of the week than not; she reported feeling worthless, helpless, and hopeless. She had lost interest in most things. She slept four to twelve hours a night, and on some days, she does not eat. She also reported having difficulty concentrating. The Veteran stated that her mother is her social support system. She stated that she had friends, but they did not hang out all the time. She stated that she does not know how to deal with people. Additionally, the Veteran reported that she has difficulty holding jobs longer than one or two years. She stated that she was fired from one job because they said that she was a racist because she said someone was mean, late to work, and doing work wrong. In a February 2015 VA Mental Health Hotline Report, the Veteran reported suicidal ideation without suicidal intent. The Veteran indicated that she was feeling overwhelmed and depressed; she had no motivation and was struggling with life circumstances. At the April 2015 VA Examination, the Veteran was noted to still be separated from her husband, and her mother lived with her. She stated that she had marriage relationship problems but otherwise had good family relationships. She had limited friends or social interactions, and she stated that she rarely left home unless necessary. She stated that she spends most days in bed, going to sleep very late and sleeping late during the day. She noted that she was currently unemployed, and she had had problems in previous jobs due to tardiness, which she attributed to being too sleepy to go to work. In a June 20, 2016 private opinion, the examiner noted that the Veteran exhibited symptoms of depression, suicidal ideation, hypervigilance, chronic sleep impairment, isolation, avoidance, irritability, angry outbursts, panic attacks, paranoia, visual and auditory hallucinations, short-term memory and concentration problems, loss of interest in hygiene, loss of interest in activities of daily living, and loss of interest in activities she once enjoyed. The private examiner stated that, in her opinion, the Veteran’s level of impairment has had an approximately 70 percent disability level since 2012. That is, her symptoms have caused “occupational and social impairment with deficiencies in most areas”. The Veteran reported that she is always in a state of depression, and this prevents her from being able to even get out of bed. The private examiner observed that the Veteran has an exaggeratedly negative outlook on life. She believes that nothing good is coming her way, and she consequently has a hard time realizing when good things do happen for her. This is ongoing and daily. The Veteran also stated that she used to read, listen to music, and write poetry; but she does not do these things anymore. She stated that she does not care about anything. The Veteran reported that she has suicidal ideation on a daily basis. She has visions of self-harm, and she plans of suicide by cutting her wrists. However, she has never attempted suicide because she does not want her children to have to live with their abusive father. She has called the suicide hotline numerous times. The Veteran engages in hypervigilant, obsessional behaviors such as checking of locks on doors and windows, even if she leaves for a minute. She states she must sit in the back of any restaurant because crazy people come in the front door. She also obsesses over seatbelts. She states that anything that has to do with safety causes her to obsess. She has a compulsive need to assure that she and her family will be safe, and she is always suspicious of the intent of others. The Veteran stated she has a very difficult time getting to sleep due to racing thoughts; and once she does get to sleep, she is unable to awaken. She does not hear her alarm, and others are unable to wake her. She stated this has caused her to lose a number of jobs due to tardiness. Between discharge from active service in 2004 and 2012, the Veteran held approximately 13 jobs. The Veteran noted she was fired from a government job at the social security administration (SSA) because of tardiness. The Veteran also stated that she is constantly fatigued, and this as likely as not affects her judgment on decisions of daily living. The Veteran felt isolated, and she stated that her avoidance is purposeful. She dislikes being around people, and she dislikes public places. She believes that people do not understand her. The private examiner stated that the Veteran has an inability to establish and maintain effective relationships. The private examiner noted that the Veteran does not socialize at all; and she dislikes being around people, so she stays in her house with the doors and windows locked as much as possible. The Veteran stated that she has a “snappy anger” toward everyone, although it was better at work than it is at home. The private examiner stated that her reactions speak to impaired impulse control. The Veteran reported that she is plagued by panic attacks, and these panic attacks will often come out of nowhere. Sometimes, they are triggered by being in crowds or around others at all. She feels her life will never be the same, as this affects her ability to function independently, effectively, or appropriately. The panic attacks cause her chest pains, suicidal thoughts, and plans of cutting her wrists. The Veteran believed that others are out to sabotage and harass her because her name is Dixie, which means to others that she is racist. She denies being a racist, and she stated that the reason she lost her job with SSA was that others believed she was racist. She stated that others yelled at her about this issue. The June 2016 private examiner opined that, these perceptions were imagined, and they were psychotic episodes that manifested in perceiving that which is not there. The Veteran stated that she hears the voice of God often, and that her eyes will play tricks on her. She often feels as if someone is flying past her or as if something is going to hit her. These sorts of things happen to her on a weekly basis. The Veteran reported that she has a good deal of trouble being able to remember anything short term, and she is also unable to concentrate. She does not read like she used to, as she cannot concentrate; and she had to drop out of school because she could not concentrate or remember schoolwork. The June 2016 private examiner observed that the Veteran’s hygiene had lapsed, and she does not care how she looks; she does not maintain herself as she should. She will often go three or more days without bathing, and her mother has to tell her to go and bathe. The Veteran reported that she does not bathe on a regular basis; and if her mother did not tell her to take a shower, she would not do so. She would rather spend her days in bed. The Veteran also does not clean her house, wash her clothes, or cook; her mother helps with the cleaning. The Veteran also reported that her appetite is reasonably poor; she does not eat a lot, and when she is very stressed, she does not eat at all. The Veteran has also been homeless twice. The Board has reviewed the balance of the Veteran’s other medical treatment records from the period on appeal prior to June 20, 2016. The findings in the other medical treatment records are substantially similar to those noted in the VA examinations and treatment records described above. At an April 2015 VA examination for mental conditions, the VA examiner diagnosed major depressive disorder, and she found that the Veteran had occupational and social impairment with reduced reliability and productivity. Her symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work relationships. She denied suicidal or homicidal ideation, plan, or intent. In an October 2014 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran stated that her depression, anxiety, and insomnia prevent her from securing or following any substantially gainful occupation. She reported that she last worked full time in July 2012, and she reported holding three different jobs between August 2010 and July 2012. She had completed three years of college. At a June 2016 hearing with a Decision Review Officer (DRO), the Veteran reported that, prior to leaving her last job, she was having difficulties with her coworkers, and she had perceived a hostile environment. She stated that her coworkers assumed she was racist, and she had difficulty dealing with people. She also had anxiety attacks with chest pain and crying, and she had difficulty waking up in the morning. She reported thoughts of suicide where, if she is in a stressful situation, she thinks things would be better off if she was not there. She also reported visions of slitting her wrists. She had called the suicide hotline a few times before. She stated that, with her depression, she has fatigue to the point where it is hard for her to wake up in the morning; she sleeps through the alarm. On bad days, she stays in the house and watches TV or plays games on her phone. The Veteran also reported problems with short-term memory, and she stated that, if she does not write it down, she will not remember it. She also has a hard time focusing and concentrating. The Veteran stated that she has very few close friends, and she rarely visits or does anything with them. She does not want to have to deal with people; she would rather stay inside and keep to herself. She noted that her mom helps with the house maintenance and taking care of her kids, and she helps wake her up. At the September 2019 Board hearing, the Veteran reported that she had last worked in 2012. At that point, she had gone back to school, she had custody of her children, and she was living with her mother. She reported that she sometimes had trouble getting her children to school because she was sleeping so much. She tried homeschooling them; but she could not keep up with it, so she stopped. She also could not complete her degree because she was doing poorly in school. She qualified for a certificate in paralegal studies. The Veteran also reported that she had been fired from her last job because she was tardy, and they accused her of misfiling things. She stated that she was too tired, and she was having problems focusing and concentrating. The Veteran also stated that, between 2013 and 2016, her symptoms had been a downward spiral, and they had gotten worse over time. Upon review of the foregoing, the Board finds that the Veteran’s depression with anxiety and insomnia was manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, thus warranting a 70 percent rating for the entire appeal period. In this regard, the Board is cognizant that, during the period at issue prior to June 20, 2016, the VA examiners had found that the Veteran’s disability resulted in no more than occupational and social impairment with reduced reliability and productivity, which is consistent with a 50 percent rating under the General Rating Formula. However, the Board finds that the nature, frequency, severity, and duration of her psychiatric symptomatology more nearly approximates occupational and social impairment in most areas, thus warranting a 70 percent rating under the General Rating Formula. The record reflects that, during the period on appeal prior to June 20, 2016, the Veteran’s depression with anxiety and insomnia resulted in psychiatric symptoms that include, but are not limited to, depression, anxiety, suicidal ideation, chronic sleep impairment, panic attacks that occur weekly or less often, irritability, anger, paranoia, suspiciousness, neglect of personal hygiene, disturbances of motivation and mood, difficulty adapting to stressful circumstances (including work or a work-like setting), and difficulty establishing and maintaining effective relationships, which most nearly approximates occupational and social impairment in most areas. However, as such symptomatology does not result in total occupational and social impairment, a rating in excess of 70 percent for such disability is not warranted. Concerning occupational and social functioning, the Board acknowledges that the Veteran reported holding several jobs over the years; and she reported difficulty concentrating, chronic sleep disturbance, and difficulty getting along with coworkers. However, the Veteran has functioned as a single mother of two or three children, and she reported having friends that she is in contact with. She also lives with her mother. Thus, while the Veteran’s psychiatric disorder resulted in occupational and social impairment in most areas, she was not shown to have total occupational and social impairment. The record does not demonstrate that the Veteran experiences symptoms were indicative of such level of impairment, to include gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Thus, a rating in excess of 70 percent for the Veteran’s acquired psychiatric disorder is not warranted. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s acquired psychiatric disorder; however, the Board finds that her symptomatology was stable throughout the period on appeal prior to June 20, 2016. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). (Continued on the next page)   In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran’s favor, which has resulted in a 70 percent rating for her depression with anxiety and insomnia during the entire period on appeal, including the period prior to June 20, 2016. However, insofar as the Board has denied a rating in excess of 70 percent, the preponderance of the evidence is against such aspects of the Veteran’s claim. Therefore, the benefit of the doubt doctrine is not applicable in such regard, and her increased rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Dawn A. Leung, 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.