Citation Nr: 21025643 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 14-28 997A DATE: April 28, 2021 ORDER An initial evaluation of 30 percent, and no higher, for major depressive disorder is granted. FINDING OF FACT The Veteran’s major depressive disorder is productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The criteria for an initial evaluation of 30 percent, and no higher, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130 Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May 2006 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2011 rating decision by the Agency of Original Jurisdiction (AOJ) that granted service connection for major depressive disorder and assigned a 10 percent evaluation. In July 2014, the AOJ reduced the evaluation of major depressive disorder to noncompensable, effective June 19, 2014. In December 2020, the Board restored the 10 percent evaluation and remanded the issue of entitlement to an evaluation higher than 10 percent for development of the record. Thus, the question for the Board is whether an evaluation higher than 10 percent is warranted for the appellate period. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Under 38 C.F.R. § 4.130, Diagnostic Code 9434, a 10 percent evaluation is assigned for major depressive disorder where there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or where symptoms are controlled by continuous medication. A 30 percent evaluation is warranted when there is 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 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). Id. 50 percent evaluation is warranted for major depressive disorder when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereo-typed 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. Id. 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted when there is total occupational and social impairment, due to such symptoms as: 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 “such symptoms as” language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means “for example” and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). On VA examination in December 2010, the Veteran was friendly and cooperative, with appropriate eye contact. He displayed good attention and was able to attend and respond appropriately. Thought process was linear and goal directed, and content was within normal limits. The Veteran denied delusions, ideas of reference, and loose associations. He denied obsessive or ritualistic behavior. He also denied homicidal and suicidal ideation. No inappropriate behavior was observed or reported. Dress and grooming were appropriate. The Veteran was oriented. There was no evidence of short or long term memory difficulties. There were no problems with expressive or receptive language. The Veteran denied currently experiencing panic attacks. There was no indication of impaired impulse control. The Veteran endorsed sleep impairment, but stated that his sleep pattern did not impair his functioning. Results of the Beck Depression Inventory indicated severe depression. The examiner noted that the Veteran’s symptoms included pessimism, feelings of guilt, self-dislike, worthlessness, and irritability. She indicated that moderate symptoms included sadness, past failures, loss of pleasure, self-criticism, agitation, loss of interest, indecisiveness, loss of energy, and an increase in sleep. The impression was major depressive disorder. The examiner concluded that the Veteran’s symptoms were producing significant difficulties in his ability to function both occupationally and interpersonally. On initial VA psychiatry consultation in January 2011, mental status examination revealed normal eye contact and motor activity. The Veteran reported feeling depressed and anxious about school, work, family, money, and his weight. Speech and thought process were normal. No delusions or hallucinations were reported or noted. The Veteran denied suicidal and aggressive behavior. The Veteran was alert and oriented. Concentration was impaired. The diagnoses were depression not otherwise specified (NOS) and anxiety NOS. Medication was prescribed. A February 2012 VA psychiatry note indicates diagnoses of depression NOS and anxiety NOS. The Veteran reported that he still had days of irritability but that he felt his medication was helping. In August 2013, the Veteran endorsed anxiety due to his job. On VA examination in June 2014, the examiner concluded that the Veteran’s major depressive disorder was in full remission. The Veteran expressed some concern about irritability and anger when he was under stress, stating that his family relationships suffered at those times. He described himself as “intense.” He reported close relationships with his wife and sister, and indicated that his relationship with his mother had improved. He attributed the improvement of his mood to psychotropic medication, and indicated that when he was not on medication, he noticed irritability and depressed mood. Regarding current symptoms, he indicated that he was easily overwhelmed when stressors escalated, and that he might revert to previous levels of symptoms during those periods. He indicated that, despite those increases in anxiety, he was able to push through his symptoms and complete required tasks. Behaviorally, the Veteran’s speech was of normal volume and tone. There was no evidence of psychotic phenomena. He reported that his mood was good and affect was consistent with stated mood. The examiner noted that the Veteran was slightly anxious upon starting the examination. He was oriented in all spheres. Memory was within normal limits for the Veteran’s age cohort. Attention and concentration were adequately preserved. Judgment, impulse control, and insight were fair. The examiner indicated that the Veteran appeared able to perform activities of daily living within expected limits. He noted that the Veteran described excessive anxiety during times of stress, with physiological symptoms of anxiety, feeling overwhelmed, difficulty concentrating, and racing thoughts. The Veteran indicated that he anticipated a return of symptoms after the birth of his twins in October, and if he was accepted into graduate school. An August 2014 VA psychiatry note indicates that the Veteran had been off medication for two months, and that he had not been doing well. He endorsed progressive depression and increased irritability, low mood, and poor concentration. He indicated that he had many stressors. The diagnoses were depression NOS and anxiety NOS. On VA examination in February 2016, the examiner concluded that the Veteran’s major depressive disorder was in full remission. The Veteran described his mood as nostalgic and reminiscent as he prepared for a move and resulting life transition. The Veteran indicated that his concentration and focus were terrible. He denied suicidal and homicidal ideation. There was no indication of thought disorder or psychosis. Behaviorally, the Veteran was adequately groomed. Speech was within normal limits, and thoughts were clear, logical, and well organized. Insight and judgment appeared intact. In August 2017, a VA provider indicated that the Veteran’s symptoms were consistent with moderate depression. In September 2017, the Veteran reported feeling depressed most days, trouble falling and staying asleep, feeling bad about himself, feeling like a failure, inability to relax, feeling terrified, nervousness, fear of losing control, fear, strong physical reactions to stressors, anger, guilt, shame, and difficulty concentrating. The provider noted that the Veteran was oriented and displayed fair personal hygiene. Speech was within normal limits. Thought process was linear and goal directed. Attention and concentration were normal. There was no evidence of disordered thoughts. Insight and judgment were fair. The diagnosis was depressive disorder. A November 2017 VA psychiatry record notes the Veteran’s report of situational anxiety. He related that he had no current stress because he had resigned from his job a week previously. He noted that during periods of stress, he experienced nervousness, sweating, and tremors. On mental status examination, the Veteran was alert and oriented. Speech was unremarkable. The Veteran described his mood as content, and the provider noted that his affect was variable and appropriate. He denied suicidal and homicidal ideation. Memory was intact. Attention, concentration, insight, and judgement were intact. The impression was adjustment disorder with anxious mood, and major depressive disorder, in remission. On VA examination in October 2019, the diagnosis was recurrent moderate major depressive disorder. The examiner indicated that the Veteran’s symptoms were productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran reported that he had not received treatment since 2016. He endorsed low motivation, low energy, poor concentration, and irritability. He related that he struggled to manage the rigors of full time work and helping to care for four children. The examiner identified symptoms of depressed mood, impaired abstract thinking, and disturbances of motivation and mood. The Beck Depression Inventory indicated moderate depressive symptoms. Having carefully reviewed the record, the Board concludes that for the entire appellate period, the Veteran’s psychiatric symptoms more closely approximate the criteria for an evaluation of 30 percent. In this regard, while the diagnoses rendered by varying providers have differed, he has consistently reported that he suffers from depressed mood and anxiety, resulting in loss of interest, difficulty concentrating, irritability and anger, sleep disturbance, agitation, indecisiveness, feelings of worthlessness, and being easily overwhelmed. In reaching this conclusion, the Board acknowledges that the June 2014 and February 2016 VA examiners determined that the Veteran’s major depressive disorder was in remission. However, on both of these occasions, the Veteran reported depressed mood, irritability, and anger resulting in interpersonal problems and difficulty completing work tasks. Moreover, contemporaneous VA outpatient records produced by the Veteran’s psychiatrist reflect diagnoses of depression NOS and anxiety NOS. Thus, the Board concludes that the record as a whole demonstrates that the Veteran’s psychiatric symptoms are productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, and that a 30 percent evaluation is warranted for the entire period of the appeal. The Board also concludes that an evaluation higher than 30 percent is not for application. While the Board accepts that the Veteran’s psychiatric disorder affects his social and occupational functioning, the objective evidence of record does not demonstrate that the Veteran’s psychiatric symptoms are productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect, disordered speech, panic attacks, difficulty in understanding complex commands, impairment of memory, impaired judgment, impaired abstract thinking, or difficulty in establishing and maintaining effective work and social relationships. During the appellate period, the Veteran has been shown to be fully oriented, with no formal thought disorder. Speech and thought process have been consistently within normal limits. At worst, insight and judgment have been assessed as fair. Memory has been intact. Panic attacks have not been assessed. There is no indication that he is unable to perform activities of daily living. He maintains hygiene. Thus, it cannot be said that the evidence as a whole for the appellate period reflects occupational and social impairment of the severity contemplated by the criteria for a 50 percent evaluation. In summary, the overall disability picture during the appellate period indicates that a 30 percent evaluation, but no higher, is appropriate. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Barone, 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.