Citation Nr: 21026162 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 15-45 474 DATE: April 30, 2021 ORDER Entitlement to an initial disability rating of 50 percent for unspecified depressive disorder with anxious distress, but no higher, is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT Throughout the appeal period, the symptoms and overall impairment caused by the Veteran’s service-connected unspecified depressive disorder with anxious distress more nearly approximated occupational and social impairment with reduced reliability and productivity, but have not more nearly approximated occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for an initial disability rating of 50 percent, but no higher, for unspecified depressive disorder with anxious distress are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.3, 4.7, 4.10, 4.21, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9413.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1965 to September 1967. This matter initially came to the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted an award of service connection for anxiety disorder, not otherwise specified, with an initial evaluation of 30 percent, effective October 12, 2006. The Veteran timely appealed this matter. A July 2014 rating decision confirmed and continued the 30 percent evaluation for unspecified depressive disorder with anxious distress (previously rated as anxiety disorder, not otherwise specified). In April 2019, the claim was remanded by the Board for further development, to include obtaining a VA examination.  The Agency of Original Jurisdiction (AOJ) has substantially complied with the Board’s April 2019 remand instructions by, as demonstrated by the discussion below, obtaining a VA examination that is adequate to decide the claim.  Thus, no further action is necessary in this regard.  As a final preliminary matter, additional evidence of a VA mental disorder examination was received within a year of the June 2013 rating decision that granted service connection. Thus, the appeal has been characterized as an initial disability rating claim. See 38 C.F.R. § 3.156(b). Entitlement to an initial disability rating for unspecified depressive disorder with anxious distress 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 an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). 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. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition.  The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required.  38 C.F.R. §§ 4.1, 4.2, 4.10.     The schedular criteria for rating psychiatric disabilities incorporate the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5).  38 C.F.R. §§ 4.125, 4.130.  The Veteran’s unspecified depressive disorder with anxious distress is rated under 38 C.F.R. § 4.130, DC 9413, and is rated under the General Rating Formula for Mental Disorders.     The Veteran’s service-connected unspecified depressive disorder with anxious distress was rated 30 percent initially disabling from October 16, 2006, the date of the award of service connection, in a June 2013 rating decision. In July 2014, the RO continued the 30 percent disability rating for the Veteran’s unspecified depressive disorder. As discussed further below, a uniform 50 percent initial disability rating for service-connected unspecified depressive disorder with anxious distress is warranted. Under the General Rating Formula for Mental Disorders, a 50 percent disability rating 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; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.     A 70 percent disability rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships.  Id.     A 100 percent disability rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name.  Id.     Under the General Rating 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 symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating.  On the other hand, if the evidence shows that the Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned.  Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004).     In April 2013, the Veteran reported during a VA examination that his relationship with his wife was not going well as a result of poor communication. He stated his health was poor, and that he received no help from his wife with daily household activities, which he found depressing. The Veteran had friends, but he stayed in his recliner most of the time and had little motivation. He experienced symptoms of depressed mood, anxiety, and chronic sleep impairment. The Veteran denied any history of psychosis or suicidal or homicidal ideation.  Overall, the VA psychologist found that the Veteran experienced 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. During a June 2014 VA examination, the Veteran reported that he had marital tension with his wife the previous year, but they were happy living together at the time of the examination. He indicated that he was not as physically active as he used to be due to his physical problems and poor sleep, and that during the day he sat in his recliner. He retired in 2002 after having two back surgeries. The Veteran stated that he visited his son, grandson, and sister several times per year, and his son and friends visited with him. He socialized with family or friends about once per month. The Veteran noted that he felt anxious when he thought about life and felt depressed when he thought about the physical activities he could no longer engage in. He experienced symptoms of depressed mood, anxiety, and chronic sleep impairment. He denied auditory/visual hallucinations. Overall, the VA psychologist found that the Veteran experienced 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. In a July 2014 VA treatment record, the Veteran reported that he would not leave the house for three weeks or do anything. He continued to experience recurrent episodes of depressed mood and fatigue. In October 2015, the Veteran reported that his relationship with his wife was excellent. He noted that his son and brother died since the last VA examination. The Veteran gained a few friendships and reported having five really close friendships. He indicated that his mood was depressed and attributed it to discussing many of his personal issues. The Veteran experienced symptoms of depressed mood, anxiety, and chronic sleep impairment. There was no current suicidal or homicidal ideation. Overall, the VA psychologist found that the Veteran experienced 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. In February 2020, the Veteran reported that his relationships with his wife and son were excellent and that he spoke to his sister every couple of weeks. The Veteran noted ongoing issues with depression and anxiety and reported sleeping more than usual. He indicated that things were very “blah,” and that he stopped going out to eat and watching sports a few years prior. The Veteran denied any current suicidal thoughts, panic attacks, irritability, or anger outbursts. He experienced some anxiety daily. The Veteran indicated that he was experiencing more nightmares and night terrors. He endorsed symptoms of depressed mood, anxiety, and chronic sleep impairment. There were no hallucinations or delusions. Overall, the VA psychologist found that the Veteran experienced 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. For the following reasons, the symptoms and impairment of the Veteran’s  unspecified depressive disorder with anxious distress more nearly approximated the criteria for an initial disability rating of 50 percent, but no higher, during the entirety of the appeal period.     The Veteran endorsed symptoms throughout the appeal period of depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. In addition, the evidence of record shows that, throughout the appeal period, the Veteran experienced occupational and social impairment with reduced reliability and productivity. Based on the evidence of record, including clinical evidence and the Veteran’s competent and credible statements, the Veteran’s symptoms and impairment during the appeal period more nearly approximated occupational and social impairment with reduced reliability and productivity as required for an initial disability rating of 50 percent.     The Veteran is not, however, entitled to a higher 70 or 100 percent initial disability rating during the appeal period as the Veteran’s disability picture does not more nearly approximate that required for a 70 or 100 percent disability rating. The evidence of record did not show suicidal ideation, obsessional rituals which interfered 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 worklike setting), inability to establish and maintain effective relationships, grossly inappropriate behavior, the Veteran’s thought content did not appear obsessive, delusional, or impaired to reality, he did not experience memory loss for names of close relatives, own occupation, or own name, and he did not show an intermittent inability to perform activities of daily living, including maintenance of minimal hygiene.  Treatment records and VA examinations repeatedly showed that the Veteran denied experiencing suicidal or homicidal ideation. Furthermore, the Veteran maintained close relationships with friends and family and did not show deficiencies in work, judgment, or thinking.  This evidence reflects that the impairment caused by the Veteran’s symptoms did not more nearly approximate the occupational and social impairment required for 70 percent or 100 percent disability ratings.  In reaching the above conclusions, the Board is mindful that the symptoms listed in the rating schedule are essentially examples of the type and degree of symptoms indicative of the level of impairment required for each such rating, and that the Veteran need not demonstrate those exact symptoms to warrant a higher disability rating.  Mauerhan v. Principi, 16 Vet. App. 436 (2002). As explained above, the Board has found that that the evidence of record shows that the Veteran has manifested sufficient symptoms of the type and extent, frequency, or severity (as appropriate) to result in the occupational and social impairment with reduced reliability and productivity required for an initial disability rating of 50 percent.  38 C.F.R. § 4.130.  However, he did not show symptoms of the type and extent, frequency, or severity (as appropriate) to result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, judgment, thinking, or mood, required for the disability rating of 70 percent, or total occupational and social impairment required for a 100 percent disability rating.  Id.    The evidence of record reflects that, for the entirety of the appeal period, the Veteran exhibited symptoms of such type, severity, and frequency as to more closely approximate an initial disability rating of 50 percent, but no higher, for his service-connected unspecified depressive disorder with anxious distress.  As the preponderance of the evidence is against a higher disability rating, the benefit of the doubt doctrine is not for application.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.     The Board has considered the Veteran’s claim and decided entitlement based on the evidence.  Neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim.  Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).   Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.