Citation Nr: 21026062 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 13-22 863 DATE: April 29, 2021 ORDER The claim of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to September 16, 2011, is dismissed. An initial disability rating of 50 percent, but no higher, for the service-connected mood disorder for the period on appeal prior to September 21, 2020 is granted. FINDINGS OF FACT 1. A December 2015 Board decision assigned an effective date of September 16, 2011 for the grant of a TDIU. The decision was not appealed to the Court of Appeals for Veterans Claims (CAVC or Court) and became final on December 15, 2015, the date of its issuance. 2. A June 2016 rating decision was issued for the sole purpose of effectuating the Board’s grant of an earlier effective date of September 16, 2011 for the assignment of a TDIU; it did not involve adjudication of any question of fact or law. 3. Throughout the period on appeal, the Veteran’s service-connected mood disorder manifested in occupational and social impairment with reduced reliability and productivity due to such symptoms as, or similar to, depression, anxiety, flattened affect, panic attacks more than once a week, sleep impairment, and difficulty establishing and maintaining effective work and social relationships. The Veteran’s disability did not manifest in occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. As the final December 2015 Board decision adjudicated the claim of an earlier effective date for the assignment of a TDIU and was not appealed to the Court, the matter of an earlier effective date for the assignment of a TDIU, prior to September 16, 2011, is barred by res judicata, and the Board has no jurisdiction over the claim. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 2. The June 2016 rating decision effectuated the December 2015 Board decision and did not adjudicate any questions of fact or law, rendering the July 2016 and August 2016 NODs to the rating decision invalid. 38 U.S.C. § 7104(b); 38 C.F.R. § 20.1100. 3. The criteria for an initial 50 percent disability rating, but no higher, for the service-connected mood disorder have been met for the period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1965 to December 1967. This matter is before the Board of Veterans’ Appeals (the Board) on appeal from a March 2013 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision granted service connection for a mood disorder with anxiety and depression due to a general medical condition (also claimed as adjustment disorder) as secondary to the service-connected disability of ischemic heart disease (claimed as heart disease) with an initial disability rating of 30 percent from January 7, 2013. On September 16, 2011, the Veteran filed a VA Form 21-8940, his original claim for entitlement to a TDIU. The claim was denied in a September 2011 rating decision. The Veteran’s Notice of Disagreement (NOD) was received February 2012. The Statement of the Case (SOC) was issued in October 2012, and the Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2012. A Supplemental Statement of the Case (SSOC) was issued in December 2012. The rating decision on appeal was issued in March 2013. As previously noted, the March 2013 rating decision granted service connection for a mood disorder with an initial disability rating of 30 percent from January 7, 2013. The Veteran’s NOD was received in March 2013. In his NOD, the Veteran disagreed with the assignment of the effective date for the grant of service connection, as well as the initial disability rating. The SOC was issued in July 2013, and the Veteran’s VA Form 9, substantive appeal to the Board was received in August 2013. During the pendency of the TDIU appeal, a January 2014 rating decision granted entitlement to a TDIU from January 7, 2013. The rating decision found that that the Veteran was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities. The effective date of the grant, January 7, 2013, was the date that the Veteran underwent a VA examination for his TDIU claim. The Veteran disagreed with the effective date for the assignment of the TDIU, and his NOD was received in January 2014. The SOC was issued in February 2014, and the Veteran’s VA Form 9 was received in March 2014. A December 2015 Board decision granted an effective date of September 16, 2011 for the assignment of the TDIU, the date the Veteran filed his original TDIU claim. The December 2015 decision also denied the claim for an earlier effective date for the grant of service connection for the mood disorder, but remanded the claim for an initial disability rating in excess of 30 percent for the service-connected mood disorder for additional development. In a June 2016 rating decision, the RO effectuated the December 2015 Board decision, by assigning the effective date of September 16, 2011 for the grant of a TDIU as directed by the Board. The June 2016 rating decision explicitly states that it is being issued solely for the purpose of implementing the Board’s December 2015 decision. Most recently, a September 2020 rating decision granted a 100 percent disability rating for the service-connected mood disorder from September 21, 2020. As the claim for entitlement to a TDIU before September 16, 2011 is dismissed, the remaining issue before the Board is entitlement to an initial disability rating in excess of 30 percent for the service-connected mood disorder before September 21, 2020. Dismissed 1. Entitlement to a TDIU prior to September 16, 2011 is dismissed. In July 2016, the Veteran, through his attorney, filed a VA Form 21-0958, NOD with the June 2016 rating decision, attempting to disagree with the assignment of the September 16, 2011 date as the effective date for the grant of a TDIU. In August 2016, the RO sent the Veteran correspondence regarding his July 2016 NOD, indicating that the correspondence was regarding the Board decision and was being forwarded to the Board. The RO did not inform the Veteran that his July 2016 NOD was accepted as a proper appeal of the June 2016 rating decision. Following this correspondence, the Veteran attempted to file an additional NOD in August 2016 with regard to the June 2016 rating decision requesting review by Decision Review Officer. These attempts to appeal the June 2016 rating decision’s implementation of the Board’s assigned effective date of September 16, 2011 for the TDIU are invalid, and are barred by res judicata. With a few exceptions noted below, Board decisions are final when issued. 38 C.F.R. § 20.1100. As the Chairman of the Board did not order reconsideration of the December 2015 decisions, and no other limited exceptions apply, the December 2015 Board decision became final on December 15, 2015, the day it was issued. The December 2015 Board decision was not appealed to the United States Court of Appeals for Veterans Claims (the Court). Instead of appealing the December 2015 Board decision to the Court, the Veteran attempted to appeal the June 2016 rating decision, but that decision was issued for the sole purpose of implementing the December 2015 Board decision. Thus, an attempt to appeal the June 2016 rating decision is an attempt to readjudicate the December 2015 final Board decision. The June 2016 rating decision is a non-adjudicating decision, as it merely effectuates the December 2015 final Board decision. As no issue, or even a question of fact or law was adjudicated by the RO in the June 2016 rating decision, there was no specific error or a downstream issue that could have been appealed. In other words, if the Veteran wished to appeal the December 2015 Board decision, an appropriate remedy was to appeal the claim to the Court, and not to appeal the June 2016 rating decision. In August 2017, the Board issued a decision denying entitlement to an initial rating in excess of 30 percent for the service-connected mood disorder. The August 2017 Board decision explicitly indicates that the issue of entitlement to a TDIU is not before the Board. The Veteran appealed the August 2017 Board denial of an increased rating for the service-connected mood disorder to the Court. In a July 2018 Order, the Court partially vacated the August 2017 Board decision and remanded the matter to the Board for development consistent with the parties’ Joint Motion for Partial Remand (JMPR). Notably, the July 2018 Order did not mention the issue of entitlement to a TDIU. The case was returned to the Board. In December 2018 and June 2020, the Board issued decisions remanding the claim of an increased rating for the service-connected mood disorder. However, both December 2018 and June 2020 Board decisions also remanded the claim for entitlement to a TDIU, noting that it is inextricably intertwined with the increased rating claim. This appears to be an inadvertent, but harmless error. At the outset, a TDIU has already been assigned, and even if we consider the increased rating claim for the mood disorder to include an inferred TDIU claim under Rice v. Shinseki, 22 Vet. App. 447 (2009), the appeal period covered by that increased rating claim does not extend farther than the current TDIU effective date. In light of the foregoing, the TDIU issue was inadvertently included in the December 2018 and June 2020 decisions. As noted above, the Veteran’s TDIU is currently effective from September 16, 2011, and, service connection for the mood disorder is effective from January 7, 2013. As the TDIU is already in effect for the entire period covered by the increased rating claim currently on appeal, a claim for TDIU is not currently intertwined with the increased rating claim. This error is harmless, as the Veteran was in receipt of a TDIU for the entire period on appeal of the increased rating claim. Moreover, the error does not have any effect on the Veteran’s benefits. As noted by the Federal Circuit in Cook v. Principi, “principles of finality and res judicata apply to agency decisions that have not been appealed and have become final.” Cook v. Principi, 318 F.3d 1334, 1336 (Fed. Cir. 2002). In DiCarlo v. Nicholson, 20 Vet. App. 52, 55-56 (2006), the Court explained the concept of res judicata as follows: The concept of res judicata requires that there be only one valid decision on any adjudicated issue or claim; that decision is the only appropriate target for any future collateral attack on that issue or claim. Cf. Hazan v. Gober, 10 Vet. App. 511, 520-21 (1997) (holding that where an unappealed final decision is determinative of an issue, an appellant is collaterally estopped from “relitigating the same issue based upon the same evidence, albeit for a different purpose”). Except as provided by law, when a case or issue has been decided and an appeal has not been taken within the time prescribed by law, the case is closed, the matter is ended, and no further review is afforded. See Leonard v. Nicholson, 405 F.3d 1333, 1337 (Fed. Cir. 2005) (“The purpose of the rule of finality is to preclude repetitive and belated readjudications of veterans’ benefits claims.” (quoting Cook, 318 F.3d at 1339 )); (“In essence, the res judicata precedent ensures that a litigant may have his or her day in Court, but not two or three.”); see also Hazan, supra. There are two primary exceptions to the rule of finality: the reopening of a claim upon the receipt of new and material evidence; and/or revision on the grounds of clear and unmistakable error (CUE). Cook, 318 F.3d at 1337 (discussing 38 U.S.C. §§ 4108, 5109A, 7111). Even these limited exceptions are strictly bound by the principles of finality and res judicata. See Russell v. Principi, 3 Vet. App. 310, 315 (1992) (entering a “cautionary note” that CUE does not mean that the same issue may be endlessly reviewed; that there is finality in veterans’ benefits jurisprudence; and that once CUE is addressed it may not be raised again, as it is res judicata); see also Link v. West, 12 Vet. App. 38, 44 (1998) (citing Russell, 3 Vet. App at 315). The July 2016 and August 2016 NODs did not include requests to reopen the claim based on new and material evidence, or a request for a revision on the grounds of a CUE. As noted above, in the December 2015 decision, the Board granted the Veteran’s claim of an earlier effective date for the grant of a TDIU, assigning September 16, 2011 as the date of the grant. That decision became final on December 15, 2015. The subsequent non-adjudicative rating decision in June 2016, and the resulting July 2016 NOD do not negate the finality of the December 2015 Board decision. 38 C.F.R. § 20.1100; and see Smith v. Brown, 35 F.3d 1516, 1526 (Fed. Cir. 1994) (recognizing VA’s administrative review scheme, and declining to interpret a regulation in such a way that would, counter to that scheme, permit an inferior adjudicatory tribunal to collaterally review the actions of a superior appellate tribunal). As no issue, or even a question of fact or law, was adjudicated in the June 2016 rating decision, there was no specific error of fact or law that would be appealed through a Notice of Disagreement. Therefore, there is no error of fact or law presently before the Board as to the Veteran’s claim for a TDIU before September 16, 2011. Accordingly, the July 2016 and August 2016 NODs are not valid appeals, and the Board does not have jurisdiction over the issue of entitlement to a TDIU before September 16, 2011. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105(d)(3). The July 2016 and August 2016 NODs did not allege a specific error of fact or law as none were adjudicated in the June 2016 rating decision. Even if the NODs were accepted as valid, the Board is still barred from considering this issue, other than under certain limited circumstances not relevant here, under the principles of finality and res judicata. The Board does not have jurisdiction over the claim, and the appeal is dismissed. 38 U.S.C. § 7105 (d)(3). Increased Rating 2. Entitlement to an initial disability rating in excess of 30 percent for the service-connected mood disorder prior to September 21, 2010. Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. When, as here, the Veteran is appealing the initial assignment of a disability rating, the severity of the disability is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods during which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity of adjustment during periods of remission. The rating agency shall assign a rating 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). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Veteran’s service-connected psychiatric disorder is rated pursuant to 38 C.F.R. § 4.130, DC 9435, under the General Rating Formula for Mental Disorders. Under the General Rating Formula, a 30 percent rating is assigned where 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, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned 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; in difficulty establishing effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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 rating is warranted when there is evidence of 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 and place; memory loss for names of close relatives, own occupation or name. Symptoms listed in the General Rating Formula serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. They are not intended to constitute an exhaustive list. Mauerhan v. Principi, 16 Vet. App. 436, 442-44 (2002). Rather, the rating assigned must be based on 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. A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114 (Fed. Cir. 2013). However, the presence or lack of evidence of a specific sign or symptom listed in the evaluation criteria is not necessarily dispositive of any particular disability level. Bankhead, 29 Vet. App. at 25. A January 2013 letter from the Veteran’s private doctor, Dr. A.T. indicates that the Veteran was recently seen for difficulty with some generalized anxiety as well as depressed mood. The letter goes on to state that this is multifactorial including PTSD, generalized anxiety disorder, and situational adjustment/reaction. It was noted that the Veteran began taking medication for his symptoms. In February 2013, the Veteran underwent a VA examination for his claim. He was diagnosed with a mood disorder with anxiety and depression due to medical condition. The VA examiner noted that the Veteran did not meet the DSM-IV criteria for a diagnosis of PTSD. The Veteran’s symptoms were listed as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, and disorientation to time or place. The Veteran was noted to be capable of managing his financial affairs. The VA examiner noted that the Veteran related his mood disorder primarily to his heart problems, and opined that the Veteran has a lot of anxiety related to fear and worry about his health and life longevity, and depression about not being able to function and perform activities as he did prior to his physical health problems. The VA examiner thoroughly reviewed the Veteran’s records, including prior examinations, and concluded that the Veteran’s mood disorder manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. A March 2013 VA primary care note indicates that the Veteran’s depression and anxiety was worsening. He was noted to treat his symptoms with medications. A June 2013 VA addendum medical opinion indicates that during the February 2013 VA examination, the VA examiner erroneously checked off the box indicating that disorientation to time and place was a symptom attributable to the Veteran’s mood disorder. The VA examiner stated that they reviewed the examination report, which stated that the Veteran was clearly oriented in all spheres. A December 2013 VA medical opinion with respect to unemployability indicates that based on reviewing the Veteran’s records, specifically the VA examination reports, the Veteran’s mood disorder is likely to affect many types of employment, due to anxiety with being amongst others, whether it is sedentary or exertional. The VA examiner concluded that with all of the Veteran’s service connected disabilities combined, it is likely that the Veterans heart disease, atrial fibrillation, mood disorder, and restrictive lung disease will moderately affect his ability to be employed in almost all types of work, and will likely affect many types of activities of daily life, due to their respective severity. A March 2014 VA depression screen indicated that the Veteran scored 0 for depression. An August 2015 VA mental health consultation note indicates that the Veteran had no previous psychiatry contact. It was noted that he was previously diagnosed with GAD and prescribed medication under the care of his primary care provider. The Veteran reported frustrations with being unable to do things like he used to. He reported being unable to go outdoors like he used to due to his physical disabilities. He also reported staying indoors being his main stressor, and worrying about things most of the day, such as health, medications, and his kids. The Veteran reported his sleep improving with CPAP and having one sleepless night per month coinciding with increased stress. The Veteran denied feelings of hopelessness and anhedonia. There were no suicidal or homicidal ideations noted, no hallucinations, or paranoia. The Veteran reported anxiety attacks, with symptoms such as shaking, sweating, feeling nervous, and freeze. These attacks were noted to last 30 to 40 minutes. It was noted that the Veteran did not have previous psychiatric inpatient admissions and may have seen a psychiatrist in the past for anxiety 3 to 4 years ago. It was noted that there were suicide attempts in the past, but that 5 years ago the Veteran had a plan to take a rope into the garage and hang because he could not walk at the time. The Veteran was noted to be alert and attentive, oriented, cooperative, reasonable, with normal speech. His mood was noted to be euthymic and affect blunted/restricted/constricted. His thought process was normal and coherent. The Veteran’s insight and judgment were noted to be good. His memory was intact. The Veteran was noted to have possible PTSD and struggling with generalized anxiety symptoms. He was referred to psychotherapy. A September 2015 VA mental health treatment note indicates that the Veteran was seen for his first scheduled therapy appointment. The Veteran reported his main concern being pain. It was noted that his mood affected is affected by his pain due to not being able to do things around the house or get out of the house. The Veteran reported sleeping better, with pain being the variable on the amount of sleep the Veteran is able to get. The Veteran reported racing thoughts (anxiety), about his day, indicating that this interferes with his sleep. There were no safety concerns noted. There were no suicidal or homicidal ideations, hallucinations, or paranoia noted. The Veteran was noted have good appearance, behavior, and attitude. His grooming and hygiene were noted to be fair. His eye contact was fair, facial expressions normal, and attitude cooperative. His mood was depressed and affect constricted. His speech was relevant and spontaneous, thought process logical and goal-oriented. Thought content was significant for somatization. His insight was adequate. The Veteran was diagnosed with GAD with somatic preoccupation. A May 2016 VA treatment note indicates that the Veteran reported seeking therapy to help with his depression. The Veteran reported sitting around at home and isolating himself due to his health problems. He described his mood as grouchy and noted low motivation. He also reported meeting a group of friends every morning at a bar/café to talk. The Veteran reported fleeting suicidal thoughts twice per month but not dwelling on it and not having an intention to end his own life. The Veteran’s hygiene, grooming, and eye contact were noted to be good. His attitude cooperative, his mood neutral, and his affect appropriate/variable. His speech was relevant and spontaneous, his thought processes logical and goal oriented, and his insight adequate. It was noted that the Veteran was to begin individual therapy again. A subsequent May 2016 VA mental health treatment note indicates that the Veteran did not report significant changes in overall mood. His mental health status check also had similar results as before. A June 2016 VA examination report indicates that the Veteran was diagnosed with a mood disorder due to heart problems with depressed mood and anxiety. The VA examiner reviewed the Veteran’s previous records during which the Veteran reported living with his wife of forty years with whom he has four children. The Veteran reported arguing with his wife because he is a grouch and having an ok relationship with his children. It was noted that the Veteran began individual therapy in May 2016 and has seen his provider twice since the initial consultation. The Veteran reported his medications being somewhat helpful with mood but still having a difficult time accepting that he can no longer do things in life due to his age. The Veteran reported having sleep difficulties after heart surgery and feeling sadness over his medical issues. The Veteran also reported being more irritable recently, resulting in occasional friction between him and his family members. The Veteran denied concentration problems. The Veteran also denied any arrests, physical altercations, or behavioral problems since his last evaluation. The Veteran’s symptoms were listed as depressed mood, anxiety, and chronic sleep impairment. The VA examiner noted that the Veteran arrived on time for his appointment, was neatly dressed and kept, was cooperative, and oriented. His speech, concentration, attention, insight, and judgment were noted to be good. His mood was on the “grouchy side.” His affect was slightly depressed, but it was noted that the Veteran was able to brighten during the evaluation. The VA examiner indicated that the Veteran may have reported subjective mental health symptoms, but that those symptoms did not rise to the level of chronicity required for a rating or diagnosis. The VA examiner also indicated that the Veteran was capable of managing his financial affairs. The VA examiner also indicated that the Veteran did not meet the diagnostic criteria for PTSD. The VA examiner concluded that the Veteran’s disability manifested in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, selfcare and conversation. A June 2016 and July 2016 VA mental health treatment notes indicate that the Veteran continued to participate in therapy and reported struggling with recovering from his recent hospitalization for blood clots. His mental health status check results were of the same results as noted above. An August 2016 VA mental health treatment note indicates that the Veteran reported not doing well since the last session. The Veteran also reported feeling overwhelmed two weeks ago and thinking of stopping his medication to see if he has any more blood clots. The Veteran indicated that the feeling quickly passed, and that he had no intention of ending his own life. The Veteran’s hygiene, appearance, grooming, behavior, attitude, and eye contact were noted to be good. His mood was neutral and affect appropriate. His speech was relevant and spontaneous, and thought process logical and goal-oriented. His insight was adequate. He was not noted to have any suicidal or homicidal ideations. His mental health status check results were of the same results as noted above. A September 2016 VA mental health treatment note indicates that the Veteran reported continuing to struggle with depression. He also reported not wanting to leave the house and spending most of his day watching TV. He reported being more irritable and causing more conflict with his wife. The Veteran reported experiencing fleeting thoughts of suicidal ideations, with no plan or intent. It was noted that the Veteran has not had his medications renewed in quite some time, and that the Veteran indicated not having the time to do now with the plan to do it during his next appointment. His mental health status check results were of the same results as noted above. The Veteran’s VA treatment notes contain mental health clinic visits in September 2017, October 2017, and November 2017. During these visits, the Veteran endorsed chronic depressive symptoms, including down and irritable mood and fleeting suicidal thought without plan or intent. His October 2017 depression screen indicated moderate depression. The November 2017 VA treatment note contains reports that the Veteran was in a good mood and reported having a good time with family over Thanksgiving. His mental health status checks contained similar results as before, with his grooming, hygiene, behavior, attitude, and eye contact being good. His insight being fair, and his thought process logical. The Veteran’s VA treatment notes indicate that his last mental health clinic visit was in 2017. A May 2019 VA treatment note contains a negative depression screen. Based on a review of the entire record, and for the reasons set forth below, an initial rating of 50 percent, but no higher is warranted for the service-connected mood disorder for the entire period on appeal. The Veteran’s symptoms, both as reported by the Veteran and as observed in this VA progress notes, VA examination reports, and various assessments, are consistent with social and occupational impairment contemplated by the criteria for a 50 percent rating. These symptoms include depression, anxiety, sleep impairment, irritability, isolation, panic attacks, and momentary suicidal ideations with no intent or plant. The Veteran’s extensive therapy records illustrate that these symptoms waxed and wanted throughout the period on appeal. For example, during his October 2017 VA therapy session, the Veteran endorsed chronic moderate depression, irritability, isolation, and increasing family conflicts. Then, during the November 2017 VA therapy session, the Veteran reported being in a good mood and having enjoyed time with his family over Thanksgiving. Moreover, the Veteran routinely denied delusions, hallucinations, homicidal ideations, or desire to end his own life. The Veteran’s insight, thought process, and judgment remained intact throughout the period on appeal. His concentration was noted to be good and he did not endorse memory problems. His hygiene did not decline, and he was described as fully oriented. With respect to social relationships, the Veteran reported meeting his friends daily and having hobbies. While the Veteran’s irritability caused some arguments with his wife and family members, there is no indication that these were longstanding problems. Additionally, while there were instances during which the Veteran reported isolation and wanting to stay home alone, he also routinely attempted to remain involved in his hobbies, staying outside, and engaging with his family. The evidence shows that during the period on appeal, the Veteran occasionally endorsed isolation, but maintained active relationships with his family and his social circle. Of note, the December 2013 VA medical opinion indicates that the Veteran’s mood disorder is likely to affect many types of employment, due to anxiety with being amongst others, whether it is sedentary or exertional. However, the December 2013 VA examiner also concluded that it was the combination of the Veteran’s service-connected disabilities, and not his mood disorder alone, that precluded substantially gainful employment. Moreover, the criteria for a 50 disability rating contemplates occupational impairment. In this case, the Veteran reported difficulty with sleeping, intermittent inability to leave the house, depression, and panic attacks. It is expected that these symptoms will cause occupational impairment. On the other hand, the Veteran’s VA treatment notes also consistently indicate that he did not have trouble with memory, concentration, orientation, or judgment. The VA examination reports indicate that the Veteran’s mood disorder manifested in no worse than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Thus, the probative medial evidence of record indicates that the Veteran’s mood disorder does manifest in an occupational impairment, but there is no evidence that this impairment rises to the level of deficiencies in most areas or a total occupational impairment. With respect to suicidal ideations, the record contains several reports of the Veteran having fleeting suicidal thoughts with no intent or plan. Each time, the Veteran indicated that these thoughts did not persist and that he does not wish to end his own life. There are also instances where the Veteran denied all suicidal ideations. There is also no evidence that the Veteran had a history or any instances of violent outbursts or any physical confrontations. Given that the objective medical evidence of record supports a finding that the Veteran’s overall disability picture did not endorse occupational and social impairment with deficiencies in most areas, these instances of passive suicidal thoughts without a plant or intent do not warrant the assignment of a rating in excess of 50 percent because the overall disability picture more nearly approximates the criteria for the assignment of the 50 percent rating and not the 70 percent rating. Thus, the evidence indicates that the throughout the period on appeal the Veteran’s symptoms were of such severity and frequency as to more nearly approximate the criteria contemplated by a 50 percent disability rating. A 70 percent disability rating for the service-connected mood disorder is not warranted as the available medical evidence does not show that the Veteran had an overall disability picture more nearly approximating occupational and social impairment with deficiencies in most areas during the period on appeal. There is no evidence of the Veteran endorsing difficulties understanding complex commands, memory impairments, delusions or hallucinations, persistent suicidal or homicidal ideations, obsessional rituals interfering with routine activities, illogical or obscure speech, near continuous panic or depression affecting his ability to function independently or appropriate, decline in hygiene, or difficulty establishing and maintaining effective social relationships. While the Veteran endorsed depression, anxiety, sleep impairment, and some isolation, the evidence shows that throughout the period on appeal the Veteran maintained a relationship with his family, kept up with his hobbies to the best of his abilities, maintained good insight and judgment, was capable of maintaining his finances, and did not have problems with concentration or memory. In essence, the Veteran’s symptoms were not of such severity or frequency as to more nearly approximate the criteria for a 70 percent disability rating. Although the record indicates that the Veteran’s disability worsened from September 21, 2020, there is no evidence to support a worsening in his disability prior to this date. Of note, an examination was ordered in 2018 but did not take place until September 2020. However, the Veteran’s VA treatment records do not support a finding of an occupational and social impairment with deficiencies in most areas. Thus, despite the absence of an earlier examination, available treatment records do not indicate that the Veteran’s disability worsened prior to September 2020. For these reasons, entitlement to an initial disability rating of 50 percent, but no higher, is warranted for the entire period on appeal prior to September 21, 2020. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kuksova, Kseniya 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.