Citation Nr: 21025102 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-22 715 DATE: April 27, 2021 ORDER Entitlement to an initial 70 percent evaluation, but no higher, for service-connected major depressive disorder with anxious distress is granted, subject to the applicable regulations concerning the payment of monetary benefits. FINDING OF FACT Affording the Veteran the benefit-of-the-doubt, the most probative evidence reflects that, throughout the entirety of the appeal period, service-connected major depressive disorder with anxious distress has been manifested by severe symptomatology, resulting in occupational and social impairment with deficiencies in most areas, such as social relations, work, and mood, without total social impairment. CONCLUSION OF LAW Throughout the appeal period, the criteria for a 70 percent initial evaluation for service-connected major depressive disorder with anxious distress, but not in excess thereof, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from December 1958 to November 1960, February 1961 to March 1964, March 1965 to April 1981, and February 1991 to April 1991. He also had additional service of an unverified nature in the United States Army Reserves. He served in the Republic of Vietnam and has been awarded a Combat Infantryman Badge and a Purple Heart Medal. This matter comes to the Board of Veterans' Appeals (Board) from a June 2016 Decision Review Officer (DRO) decision by a Department of Veterans Affairs (VA) Regional Office (RO) of the Veterans Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with the initial evaluation assigned for service-connected unspecified depressive disorder, and the present appeal ensued. This issue, among others, was previously before the Board in October 2018, when it was determined that a remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board’s prior remand directives have been substantially completed, and the Veteran’s appealed issue has been returned to the Board for further appellate consideration. Stegall v. West, 11 Vet. App. 268, 271 (1998). Additional matters The Board’s October 2018 remand also included an appealed issue to establish service connection for posttraumatic stress disorder (PTSD). Specifically, this issue was remanded to correct a procedural error, and a Statement of the Case (SOC) was issued in July 2020, which represents substantial compliance with the Board’s remand directive. Manlincon v. West, 12 Vet. App. 238 (1999); Stegall, supra. Despite the above actions, the Veteran did not perfect this appealed issue to the Board by submitting a timely substantive appeal, and thus, that issue is no longer in appellate status. Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997). Additionally, the instant appeal is one of three active appeal streams that the Veteran has within VA’s system. Pertinently, in January 2019, the Board, among other actions, remanded the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). The Board acknowledges the Court’s holding in Rice v. Shinseki, 22 Vet. App. 447, 452 (2009), that entitlement to a TDIU is part and parcel of any claim or appeal seeking an increased evaluation; however, this issue remains in remand status and is being developed for readjudication by the AOJ. As such, the current appeal is found to be distinguishable from Rice, and the Board will defer readjudication of entitlement to a TDIU as not to duplicate efforts or overstep the AOJ’s jurisdiction of this issue. The Board further notes that as it is assigning a higher rating in this case, any decision with respect to the TDIU should be deferred until the AOJ has had an opportunity to implement the increased rating. 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected major depressive disorder with anxious distress Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart, supra. Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104 (a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under 38 C.F.R. § 4.130, Diagnostic Code 9435, a 30 percent rating is warranted when there is occupational and social impairment with an 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 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability 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 of the Veteran 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 use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute 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.” Id, at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id, at 443. The Board acknowledges that effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM IV, AMERICAN PSYCHIATRIC ASSOCIATION: DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 4th Edition (1994). The amendments replace those references with references to the recently updated DSM 5, and examinations conducted pursuant to the DSM 5 do not include GAF scores. As the Veteran’s claim for benefits was certified after August 2014, the DSM 5 criteria will be utilized in the analysis set forth below. Analysis The appeal period for consideration is from May 1, 2012, (the effective date of the award of service connection for the Veteran’s service-connected psychiatric disability) to the present. With the above criteria in mind and for the reasons stated below, the Board concludes that the Veteran’s symptoms of service-connected major depressive disorder with anxious distress most closely approximate the criteria for a 70 percent initial evaluation, but no higher, throughout the entirety of the appeal period. As an initial matter, the Board observes that the Veteran’s psychiatric symptoms have been attributed to several different diagnoses during the appeal period. Specifically, the evidence reflects that the Veteran has been diagnosed unspecified depressive disorder, major depressive disorder with anxious distress, depression, not otherwise specified (NOS), and anxiety disorder, NOS, during the appeal period. Further, a diagnosis of PTSD has also been considered, and an appeal to establish service connection for this particular acquired psychiatric disability remains ongoing. In this regard, the Board observes that, most recently, the October 2020 VA psychiatric examiner stated that the Veteran’s prior diagnosis of unspecified depressive disorder was rendered in error, and that the Veteran’s only acquired psychiatric disability is, and has been, major depressive disorder with anxious distress. Although the AOJ did not recharacterize the Veteran’s service-connected disability based on the October 2020 VA examiner’s statement, the Board will attribute all psychiatric symptoms and resulting functional impairment to the diagnosis of major depressive disorder with anxious distress, as no medical professional differentiated between which symptoms were attributable to each distinct diagnosis. Mittleider v. West, 11 Vet. App. 181 (1998). The evidence of record concerning the severity, frequency, and duration of the symptoms associated with the Veteran’s service-connected unspecified depressive disorder are contained with the Veteran’s extensive VA treatment records and reports of VA psychiatric examinations dated in September 2012, March 2014, June 2015, and October 2020. This evidence reflects that the Veteran’s service-connected psychiatric disability, regardless of the characterization of such, is manifested by depressed mood, anxiety, chronic sleep impairment, impairment of short-term memory, disturbances of motivation and mood, and difficulty in adapting to stressful situations, to include a work-like setting. The VA examiners opined that the frequency, severity, and duration of the symptoms associated with the Veteran’s service-connected psychiatric disability were “mild” and resulted in no more than occupational and social impairment with reduced reliability and productivity. While noting the above, the Board notes that the Veteran’s VA treatment records and lay statements reflect the most significant psychiatric symptoms and functional impairment. Specifically, the Veteran divorced three times since his separation from active duty, and he endorsed feelings of survivor’s guilt and experiencing flashbacks, a diminished appetite, and intrusive thoughts, all resulting in increased anxiety and functional impairment. In this regard, the Board observes that the VA examinations conducted during the appeal period may not have considered the totality of the Veteran’s psychiatric symptoms because, as noted above, there was significant disagreement concerning the characterization of which of the diagnosed psychiatric disabilities were for consideration at the time of the examinations. Accordingly, the Board finds the frequency, severity, and duration of the Veteran’s symptoms to be more significant than that which is reflected in the criteria for the currently assigned 50 percent evaluation. The Board notes that the Veteran did not endorse all or nearly all of the symptoms typically associated with a 70 percent evaluation. There was no evidence showing, for example, spatial disorientation or suicidal ideation. Nevertheless, in assigning an evaluation, the Board is not required "to find the presence of all, most, or even some, of the enumerated symptoms." See Mauerhan, supra. On the other hand, the Veteran’s psychiatric symptoms and resulting functional impairment reported by the Veteran during the appeal period are indicative of serious symptoms or serious impairment of social or occupational functioning. As such, the Board finds that the Veteran’s psychiatric symptoms most closely approximate the criteria for a 70 percent initial evaluation for service-connected major depressive disorder with anxious distress throughout the appeal. Accordingly, to this extent, the benefit sought on appeal is granted. Therefore, the remaining question before the Board is whether the Veteran’s service-connected psychiatric disability meets or closely approximates the criteria for a total schedular evaluation at any point during the appeal period. As recounted above, the criteria for a 100 percent evaluation for an acquired psychiatric disability are symptoms productive of total occupational and social impairment. The record reflects that the Veteran has held two occupations as an adult, as a soldier in the United States Army and as a policeman in 1965, prior to his re-enlistment into the Army and serving in the Republic of Vietnam. Whether the Veteran’s service-connected psychiatric disability precludes his participation in a substantially gainful occupation is closely tied to his appeal seeking a TDIU, which, as noted above, is not currently before the Board. Nonetheless, the Board need not comment on that matter at the present because the evidence does not reflect that the Veteran’s service-connected psychiatric disability has resulted in total social impairment at any time during the pendency of the appeal. To the above point, while the evidence clearly reflects that the Veteran’s psychiatric symptoms may have been a factor in the dissolution of three prior marriages and caused him to struggle with periods of agitation and isolation, there is uncontroverted evidence that the Veteran’s service-connected psychiatric disability does not result in total social impairment. The Veteran lives with another party who he has referred to as his girlfriend or companion for more than 15 years. Further, he has a good relationship with his two adult daughters, his grandchildren, and at least one son-in-law, the latter of who accompanied him to the October 2020 VA examination. Moreover, the Veteran reported participating in community events throughout the appeal period, and while he has not done so much in recent years, this has been due to physical limitations associated with his service-connected low back disability. To the extent that undertaking social situations and relationships may be difficult due to the Veteran’s psychiatric symptoms, that functional impairment is accounted for in the 70 percent initial evaluation which the Board has found to be warranted. In sum, because the Veteran’s psychiatric symptoms do not result in total social impairment, assignment of a 100 percent initial evaluation is not warranted. Based on the foregoing, and resolving all doubt in the Veteran’s favor, the Board concludes that the Veteran’s psychiatric symptomatology most nearly approximates the criteria for a 70 percent initial evaluation, but no higher, for the entirety of the appeal period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Scott W. Dale, 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.