Citation Nr: 21022514 Decision Date: 04/16/21 Archive Date: 04/16/21 DOCKET NO. 17-48 362 DATE: April 16, 2021 ORDER Entitlement to a 70 percent evaluation, but no higher, for major depressive disorder with features of posttraumatic stress disorder (PTSD) prior to December 9, 2019 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an evaluation in excess of 70 percent for major depressive disorder with features of PTSD for any time period on appeal is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 9, 2019, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s major depressive disorder with features of PTSD has been productive of occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for a 70 percent evaluation for major depressive disorder with features of PTSD prior to December 9, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9434. 2. The criteria for an evaluation in excess of 70 percent for major depressive disorder with features of PTSD have not been met for any time period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from September 1965 to September 1968. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA). In that decision, the agency of original jurisdiction (AOJ) recharacterized the service-connected psychiatric disability to include features of PTSD and increased the evaluation to 50 percent effective from the date of claim for increase. The Board remanded the increased evaluation claim for further development in March 2019, also finding that a TDIU claim had been raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a May 2020 rating decision, the AOJ granted a 70 percent evaluation for the disability effective from December 9, 2019. Because that evaluation does not represent the highest possible benefit, the issue remains in appellate status as stated above. AB v. Brown, 6 Vet. App. 35 (1993). The AOJ also granted entitlement to a TDIU effective from that same date. The requested development was completed, and the case has since returned to the Board for appellate review. Finally, the Board notes that the updated VA treatment records added to the claims file after the May 2020 supplemental statement of the case contain the same information as that established in other records reviewed by the AOJ. As such, the records are duplicative and do not materially alter the outcome of the case, so a remand for initial AOJ review for the claim decided herein is not necessary. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). In this case, the now-assigned uniform evaluation, but no higher, is warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran seeks a higher evaluation for his service-connected psychiatric disability. He has contended that in the time since his last claim, he has experienced problems such as a decrease in social functioning and increased anxiety, resulting in sleep disturbance. See, e.g., February 2015 claim; July 2016 notice of disagreement (NOD); October 2016 substantive appeal. He is currently assigned a 50 percent evaluation prior to December 9, 2019 and a 70 percent evaluation thereafter pursuant to 38 C.F.R. § 4.130 (General Rating Formula for Mental Disorders), Diagnostic Code 9411. Effective August 4, 2014, VA amended the portion of the rating schedule dealing with mental disorders and its adjudication regulations to incorporate the Fifth Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM-5) rather than the Fourth Edition (DSM-IV). Because this claim was received by and pending before the AOJ after that time, the regulations pertaining to the DSM-5 are for application. See 79 Fed. Reg. 45093 (Aug. 4, 2014) and 80 Fed. Reg. 14,308 (March 19, 2015) (adopting interim final rule as final); Golden v. Shulkin, 29 Vet. App. 221 (2018). Under the General Rating Formula, a 50 percent evaluation is warranted when 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 when 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 work-like setting); inability to establish and maintain effective relationships. A 100 percent evaluation 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 or place; memory loss for names of close relatives, own occupation, or own name. The list of symptoms under the rating criteria are not meant to be 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. If the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002); Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). In addition, evaluation under § 4.130 is “symptom-driven” and “a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Section 4.130 “requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that an evaluation of 70 percent is warranted for major depressive disorder with features of PTSD prior to December 9, 2019. The record shows that the Veteran sought some VA mental health treatment up until early 2013 (prior to the appeal period), with a few status notes and screenings as part of his other medical treatment thereafter. During the July 2015 VA examination, he explained that he discontinued mental health treatment due to growing dissatisfaction with medication side effects and not being comfortable with the therapy process of talking about his military experiences and feelings. In addition, the record shows that he experienced sleep disruption due to the need to use the restroom and sleep apnea for which he did not want to wear a CPAP, as well as some fatigue and an “overwhelming feeling” (also noted as increased anxiety) associated with other medical problems. See, e.g., VA treatment records from November 2014, December 2014, and May 2017 (suspicion and diagnosis of sleep apnea; refused CPAP); December 2015, March 2017, and September 2017 (increased fatigue since stopping testosterone with history of hypogonadism; overwhelming feeling after change in level of thyroid medication, noted decrease in anxiety after medication adjustment). Regarding work, the record shows that the Veteran had various jobs after service, including as a computer technician, in construction and roofing, and as a truck driver for a town highway department until he lost his commercial driver’s license due to drinking. He was then employed as a steel worker and maintenance serviceman until he was injured, leading to an early retirement in 2001. See November 2013 and July 2015 VA examination reports. In the July 2016 NOD, he explained that he held jobs where he did not have to interact with many people. In a February 2005 VA record, the Veteran reported that he wanted to go back to work to increase his own Social Security income when he was older, but that he could not at that time because he was his mother’s caretaker. In a July 2005 VA treatment record, he discussed doing well since his mother had passed and that he had not gotten a job, but that he had not looked for one either. In August 2011 VA treatment records, it was noted that the Veteran had been sober since 2002 without any problems, and he continued to be committed to long-term recovery. The addiction therapist found that he did not meet the criteria for alcohol dependence at that time due to abstinence from the substance. The VA treatment records during the appeal period show ongoing negative alcohol screenings. The November 2013 VA examination report shows that he historically worked around the house, and the more recent VA treatment records suggest the same. See, e.g., February 2017 (noted falling from a roof). The July 2015 VA examiner noted that the Veteran continued to be fully retired due to a combination of his mental and medical conditions. The December 2019 VA examiner noted that he was retired, spending time on the computer, as well as at a fishing and gaming club on the weekends. Regarding social functioning, the Veteran has reported that he has activities he enjoys, but he likes to avoids groups and has ongoing problems interacting with others. He has also reported that he has trouble making and keeping friends and does not date, also electing not to visit the VFW or American Legion because he quit drinking and wants to remain abstinent. See, e.g., June 2019 VA treatment record; July 2015 VA examination report; July 2016 NOD. During the July 2015 VA examination, he reported that he did have a casual friendship with an elderly neighbor he checks in on, as well as a friend with whom he maintains periodic contact. During the December 2019 VA examination, he reported that he did have a few close friends that he sees but no family to keep in touch with. The July 2015 VA examiner noted symptoms including a depressed mood, anxiety, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene, and that his current presentation suggested active symptoms of chronic depression (recurrent, moderate to severe) with feelings including hopelessness and helplessness, rumination, anhedonia, lethargy, emotional detachment and numbing, social avoidance, and periods of anxious distress. The examiner determined that the severity and duration of the Veteran’s psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. However, she also indicated later in the report that, as a result of the Veteran’s severe depressive episodes, his psychosocial and occupational functioning was severely compromised in all realms. The examiner also noted that given the chronicity and severity of the Veteran’s symptoms, she strongly encouraged him to consider resuming treatment services for his depression. During the December 2019 VA examination (considering the Veteran’s reports from prior to that time), the examiner noted similar symptoms, including his report that he became down for a few hours, once a month, with a loss of interest in his usual activities about 25 percent of the total time (one week per month), and that he felt socially avoidant, had anxiety, and had disturbances of motivation and mood, among other things. The examiner determined that the severity and duration of the Veteran’s psychiatric symptoms resulted in occupational and social impairment with deficiencies in most areas, indicating that he was experiencing depression-related loss of interest and low motivation. Based on the foregoing, there is an approximate balance of positive and negative evidence as to whether the Veteran’s disability picture is more consistent with a 70 percent evaluation for the period prior to December 2019. The 2015 and 2019 VA examiners considered nearly identical reported symptoms and presentation (that has remained consistent throughout the appeal period) with differing outcomes as to the resulting occupational and social impairment levels; the 2019 examiner’s determination was based on the Veteran’s reported symptoms prior to the day of the examination. See also 38 C.F.R. § 4.126(a). Resolving reasonable doubt in favor of the Veteran, the Board finds that his disability picture, to include the severity, frequency, and duration of his symptoms, as well as the resulting impairment of social and occupational functioning, supports the assignment of a 70 percent evaluation, and the claim is granted to that extent. Nevertheless, the Board finds that an evaluation in excess of 70 percent is not warranted for any time period on appeal. The Veteran has not demonstrated a level of impairment consistent with the 100 percent criteria, nor have his symptoms caused both total occupational and social impairment, to include in areas referenced by the 100 percent criteria. Mauerhan, supra, Vazquez-Claudio, supra; see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (use of the conjunctive “and” in a statutory provision meant that all of the conditions listed in the provision must be met); cf. Johnson v. Brown, 7 Vet. App. 95 (1994) (only one disjunctive “or” requirement must be met in order for an increased evaluation to be assigned). Indeed, although the Veteran has significant social withdrawal, he has also been able to maintain relationships with a neighbor and a few friends throughout the appeal period. His statement in the October 2016 substantive appeal that he has no relationships of any sort is inconsistent with the remainder of the record. As such, it cannot be said that he has total social impairment. To the extent that symptoms associated with the 100 percent rating criteria may be shown or argued, the Board emphasizes that the disability has not been shown to be productive of more than occupational and social impairment with deficiencies in most areas. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (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). REASONS FOR REMAND The AOJ granted entitlement to a TDIU effective from December 9, 2019 in the May 2020 rating decision, as noted above. Because the claim was raised as part of the increased evaluation claim, the issue of entitlement to a TDIU prior to that date remains on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009) and Harper v. Wilkie, 30 Vet. App. 356 (2018). The content of the rating decision indicates that the AOJ has not considered the matter prior to that assigned effective date. The case is REMANDED for the following action: After effectuating the grant of the increased evaluation for the service-connected psychiatric disability in this decision and conducting any necessary development, consider whether the Veteran is entitled to a TDIU based on impairment attributable to his service-connected disabilities prior to December 9, 2019. See Rice v. Shinseki, 22 Vet. App. 447 (2009) and Harper v. Wilkie, 30 Vet. App. 356 (2018); December 2019 TDIU application and employer statement (for employment until 1997; worked until 2001). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.