Citation Nr: 21023148 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-14 581 DATE: April 20, 2021 ORDER Entitlement to an initial rating of 70 percent prior to November 7, 2013, but no higher, for service-connected depressive disorder with anxiety (depression), is granted. REMANDED Entitlement to a disability rating in excess of 70 percent for service-connected depression is remanded. FINDING OF FACT Resolving all doubt in his favor, prior to November 7, 2013 the Veteran’s service-connected depression manifested occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW Prior to November 7, 2013, the criteria for a 70 percent rating, but no higher, for service-connected depression have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the Army from October 2003 to January 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). It was previously before the Board of Veterans Appeals (Board) in February 2021 at which time it was remanded for the development of medical records. That development has been completed in substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms. See Read v. Shinseki, 651 F. 3d 1296, 1302 (Fed. Cir. 2011). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board must also consider staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 50910 (2007). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, in reaching its decision the Board considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the disability. See Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or manifestation of a disability, under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran’s claim. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran’s depression is currently evaluated under DC 9434, which follows the General Formula. In relevant part, under the General Formula, a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or name. The Board acknowledges that psychiatric examinations frequently include the assignment of a global assessment of functioning (GAF) score. The American Psychiatric Association has released the Diagnostic and Statistical Manual of Mental Disorders (5th Ed.) (DSM-5), and 38 C.F.R. § 4.130 has been revised to refer to the DSM-5. The DSM-5 does not contain information regarding GAF scores. Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the DSM-IV and replace them with references to the DSM-5. See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014). VA adopted as final, without change, the interim final rule and clarified that the provisions of the final rule did not apply to claims that were pending before the Board, this Court, or the U.S. Court of Appeals for the Federal Circuit on August 4, 2014, even if such claims were subsequently remanded to the agency of original jurisdiction. See 80 Fed. Reg. 14,308 (Mar. 19, 2015). In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court held that given that the DSM-5 abandoned the GAF scale and that VA has formally adopted the DSM-5, the Board errs when it uses GAF scores to assign a psychiatric rating in cases where the DSM-5 applies. This appeal was initially certified to the Board in December 2016. As such, the DSM-5 applies; GAF scores will not be considered. Turning to the evidence, in a February 2012 rating decision that effectuated a January 2012 grant of service connection by the Board, the Veteran’s depression was evaluated at 30 percent disabling effective June 18, 2007. The Veteran appealed this initial rating and submitted a 2010 neuropsychology evaluation. See August 2010 Correspondence. During the course of the appeal, the Veteran has been granted increased 50 and 70 percent ratings, effective May 22, 2010, and November 7, 2013, respectively. As higher ratings are available, the claim has remained on appeal. Having reviewed the current record, the Board concludes after resolving all doubt in his favor, that the Veteran’s symptoms more closely approximated the level of impairment associated with a higher, 70 percent rating for the periods in which he is in receipt of 30 and 50 percent ratings. 1. In excess of 30 percent prior to May 22, 2010. VA and private records; March 2007 Mental Status Exam; May 2010 VA examination; Dr. A.R., Dr. H.P, Dr. D.W.H statements, lay statements and treatment records from Washington, D.C. VA Medical Center show that the Veteran’s depressive disorder is manifested by suicidal ideation, flat affect, occupational and social impairment with deficiencies in judgment, thinking, family relations, work, mood, or school symptoms, near continuous depression affecting the ability to function independently, appropriately and effectively; difficulty adapting to stressful circumstances (including work or a worklike setting); inability to maintain effective relationships; difficulty understanding complex commands, impaired memory, disturbances of motivation and mood; depressed mood, anxiety, feelings of worthless ness; fatigue, forgetfulness, lack of interest in activities; and poor appetite. These symptoms are more closely associated with, at most, a 70 percent rating under the General Formula. The Board notes that the following symptoms are not listed in the General Formula: difficulty concentrating; feelings of worthlessness; memory disturbance; fatigue; forgetfulness; irritability; lack of interest in activities; and poor appetite. However, these symptoms are similar to other symptoms that are listed in the General Formula, such as near-continuous panic or depression affecting the ability to function independently, disturbances of motivation and mood, depressed mood, difficulty in understanding complex commands, impairment of short- and long-term memory, and chronic sleep impairment. These are symptoms enumerated in the 50 percent criteria of the General Formula. Accordingly, the Board finds these symptoms are more closely associated with a 70 percent rating. The Board notes that the May 2010 examiner opined that while suicidal ideation was present, the Veteran denied plans or intent to act upon those thoughts. See May 2020 VA Examination Opinion, pg. 3. The examiner then concluded that the Veteran’s depression resulted in an occupational and social impairment with reduced reliability and productivity, which more closely approximated a 30 percent rating. See id. at pg.4. However, the Board notes that the May 2010 examiner reviewed the Veteran’s March 2007 clinical psychologist evaluation by Dr. N.B., which noted that the Veteran reported that he would not “hurt himself but would rather be euthanized.” See id. at pg.3. Therefore, the Board finds the May 2010 examiner’s opinion to be internally inconsistent with the Veteran’s medical records. The Board acknowledges that symptoms contemplated by the 100 percent rating, such as gross impairment in thought processes or communication and persistent delusions or hallucinations were not noted in the records referenced above. Clinical examinations from March 2007 to May 2010 showed linear thought processes that were unremarkable. These examinations—with regard to thought processes and hallucinations or delusions—were internally consistent with lay statements provided by the Veteran, the Veteran’s medical records and exams. Therefore, when considered overall, the evidence shows symptoms are more closely associated with a 70 percent rating under the General Formula. 2. In excess of 50 percent to November 7, 2013. In January 2015, the Veteran notified VA that his depression had worsened and requested a new VA examination. See Summary of Informal Conference, January 21, 2015. Treatment records from Psychological and Life Skills Associates show in October 2013 that the Veteran reported symptoms of irritability, trouble expressing yourself, fatigue, low energy levels, trouble falling asleep, frequent awakenings at night, frustration, excessive fear/worry, lack of interest in sexual relationships, social isolation, depressed mood, mood swings, hopelessness, anxiety, guilt, grief, mourning, difficulty coping with pain, aches and pains, problems in thinking, memory problems and a history of traumatic events. Records show that the Veteran received individual therapy sessions for anxiety and depressive symptoms. In June 2014 after several treatment sessions the Veteran reported mental health symptoms as follows: irritability, aggression, trouble expressing yourself, frequent fatigue, low energy levels, trouble falling asleep, trouble getting up in the morning, frequent awakenings during the night, easily frustrated, recent weight gain/loss, lack of interest in sexual relationships, social isolation, depressed mood, hopelessness, anxiety, rage/anger, grief/mourning, coping with pain, aches and pain, suicidal thoughts, problems in thinking, problems with memory and a history of traumatic events. A mental disorders Disability Benefits Questionnaire (DBQ) from Dr. F from November 2013 showed a diagnosis of major depression, the symptoms of which caused occupational and social impairment in most areas. Symptoms were reported as follows: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, difficulty in understanding complex commands, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances including work or a worklike setting, inability to establish and maintain effective relationships, suicidal ideation, and obsessional rituals. Dr. F indicated that the Veteran suffered from severe and chronic depression that has an enormous negative impact on your occupational and social functioning. See June 2015 Supplemental Statement of the Case. The Veteran also expressed chronic passive thought of dying. However, the Veteran failed to report to a VA examination and good cause was not provided for not reporting to the examination. In lieu of the examination, the RO utilized the private DBQ. The RO granted an increased rating of 50 percent due to a finding of the intermittent inability to perform activities including self-care, difficulty establishing and maintaining effective work, school and social relationships, occupational and social impairment with reduced reliability and productivity as evidenced by difficulty in short-term and long-term memory, disturbances in motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The Board notes, however, that the Veteran also expressed chronic thoughts of dying. See January 9, 2013 VA Treatment Records. Where there is a question of which evaluation should be applied, the higher evaluation shall be applied if the disability picture more nearly approximates the criteria for that rating. See 38 C.F.R. § 4.7. In this case, the Board finds that his symptoms more closely approximate a 70 percent rating, as the evidence indicates that his prolonged depression is manifest by suicidal ideation, occupational and social impairment with deficiencies in judgment, thinking, family relations, work, mood, or school. Therefore, the Board finds that, for the periods on appeal prior to November 7, 2013, the Veteran’s depression more closely approximates a 70 percent rating. The current record does not show, however, that the Veteran’s persistent depressive disorder more nearly approximates a100 percent rating because it is not characterized by total occupational and social impairment. He was not totally socially impaired. Though he endorsed social isolation and avoidance of people, he still reported having a couple of friends and fair family relationships. REASONS FOR REMAND 1. Entitlement to a rating in excess of 70 percent. As previously noted, the matter was remanded to obtain 2020 Washington, D.C. VAMC psychological treatment records. Those records were associated with the claims file. However, it is not clear that the October 2020 VA examination opinion considered these updated records when the examiner opined as to the current severity of the Veteran’s depression. Therefore, remand is necessary for an addendum opinion that expressly considers the updated psychological treatment records and opines as to the current severity of the Veteran’s depression. The matter is REMANDED for the following action: Obtain a VA examiner’s addendum opinion to determine the current symptoms, level of severity, and functional impairment associated with the Veteran’s service-connected depression. The claims file should be reviewed by the examiner. In preparing the opinion, the VA examiner should explicitly state whether they have reviewed the updated 2020 psychological records from the Washington, D.C. VAMC, and incorporate them into their analysis of the severity of the Veteran’s depression. The need for an additional examination is at the discretion of the examiner. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McKenzie, 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.