Citation Nr: 21027906 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 15-18 346 DATE: May 7, 2021 ORDER For the appeal period prior to November 8, 2018, entitlement to a disability rating in excess of 70 percent for unspecified depressive disorder, to include major depression, is denied. For the appeal period from February 28, 2019, entitlement to a 100 percent disability rating for unspecified depressive disorder, to include major depression, is granted. FINDINGS OF FACT 1. For the appeal period prior to November 8, 2018, the Veteran's unspecified depressive disorder has most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and corresponding symptomatology. 2. For the appeal period post February 28, 2019, the Veteran's unspecified depressive disorder has most closely approximated total occupational and social impairment and corresponding symptomatology. CONCLUSIONS OF LAW 1. For the appeal period prior to November 8, 2018, the criteria for a rating in excess of 70 percent for unspecified depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. For the appeal period post February 28, 2019, the criteria for a rating of 100 percent for unspecified depressive disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1981 to February 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The matter was most recently before the Board in June 2018, at which time it was remanded for further development, to include obtaining outstanding treatment records and an examination. The RO complied with these instructions. Three requests for private treatment records from Dr. M.A. Rodil Cuadrado were made, specifically on September 2019, October 2019, and February 2020. As of date, Dr. M.A. Cuadrado has not forwarded the requested private treatment records. Pursuant to the remand directives, a VA examination was conducted in February 2021. The Board is satisfied that the remand directives have been complied with. See Stegall v. West, 11 Vet. App. 268 (1998). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c); 38 U.S.C. § 7107(a)(2). The Veteran claims an increased rating for unspecified depressive disorder, to include major depression. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue 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, 126 (1999). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in 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, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran's unspecified depressive disorder is rated under DC 9434, 38 C.F.R. § 4.130. Under DC 9434, the following applies: A 70 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 an inability to establish and maintain effective relationships. A 100 percent rating is warranted 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; and memory loss for names of close relatives, own occupation, or own name. The list of 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. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, 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, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). Turning to the procedural evidence, a May 1987 rating decision granted service connection for major depression with a zero percent evaluation effective January 17, 1986. A September 2014 rating decision for major depression previously under code 9207 increased the evaluation to 50 percent, effective June 20, 2014. A March 2019 rating decision increased the evaluation to 100 percent based on hospitalization in excess of 21 days for a service-connected condition, effective November 8, 2018; and an evaluation of 50 percent reassigned effective February 28, 2019. A February 2021 rating decision changed the diagnosis to unspecified depressive disorder and increased the evaluation to 70 percent, effective June 20, 2014. A September 2014 VA examination report noted 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 symptoms controlled by medication. Symptoms included depressed mood, anxiety, impaired judgement, impaired abstract thinking, and disturbances of motivation and mood. The examiner noted that there is ample evidence of illegal drug and alcohol abuse and dependence since the military to the present, to include abusing cannabis and cocaine. The Veteran behaved properly during the entire interview. The record contains a January 2015 letter indicating that the Veteran has been under a private physician's care with psychotherapy and pharmacological treatment for a diagnosis of post-traumatic stress disorder. During February 3-7, 2017, the Veteran was hospitalized due to a self-harm gesture by intoxication with carbon monoxide at his house. In an admission note, the Veteran reported death wishes, but denied active ideas to harm himself, and denied active suicidal or homicidal ideas. He admitted he has had an auditory hallucination of voices that called him by his name, and seeing things not perceived by others. The Veteran was hospitalized from May 11-16, 2017 due to self-harm by electrocution. He reported crying spells, irritability, loss of interest in previously pleasurable activities, decreased appetite, low level of energy, guilt by his alcohol and substance use, poor concentration, chronic trouble sleeping, feelings of hopelessness and worthlessness. He denied homicidal ideas, and denied active auditory hallucinations. He admitted a history of some hypomanic/manic symptoms. During September 5-13, 2017, the Veteran was admitted to an inpatient psychiatric center due to depressed mood and suicidal ideation after an unconfirmed suicidal attempt by pill ingestion. It was noted that he appeared to be intoxicated with alcohol at the time of his intake. The Veteran reported feelings of worthlessness, uselessness, hopelessness, and death wishes. He admitted ideas of self-harm, but denied ideas of harming others. He denied hearing or seeing things that are not noted by others. A VA Vocational Rehabilitation record indicated as of November 8, 2017 the Veteran had been a full-time mechanic employed at a hotel in Puerto Rico since 1996. During February 3-7, 2018, the Veteran was hospitalized after a suicide attempt. The Veteran attempted to jump off a bridge, however, the event was "interrupted by other" and no injuries were reported. Urine toxicology on admission was positive for cocaine and cannabinoids. The Veteran reported his mother's death, which occurred six days prior, was a triggering factor. The Veteran steadily showed improvement in appearance, mood, affect, thought content, behavior, and perception during his admission. At discharge, the Veteran was awake, alert, oriented in time, place and person, broad affect, and in contact with reality. The Veteran was admitted to a psychiatric hospital from July 23, 2018 to August 1, 2018 after reporting depressive symptoms, hopelessness, helplessness, feeling sad, and suicidal ideas. The Veteran reported that he had been unemployed for the past few months after the hotel he had worked at for 24 years closed due to Hurricane Maria. He increased the use of alcohol to 20-24 beers daily, using cocaine ($20 worth), using crack ($40 worth), and cannabis occasionally before admission. He completed his inpatient treatment and was discharged. At the time of discharge, he denied any suicidal or homicidal ideas, auditory or visual hallucinations, or any other psychotic symptoms. He denied any access to firearms. He appeared oriented to person, time, place, situation, alert and attentive, and spoke at a normal rate and rhythm. His mood was euthymic, wide range affect, with intact memory, good judgement, and good insight. On November 8, 2018, the Veteran was admitted into the domiciliary residential rehabilitation treatment program (DRRTP). Within the 11 days prior to admission, he reported he was drinking one 750 ml bottle of alcohol per day, smoking one joint of THC weekly, and using $40-$60 worth of cocaine daily. The physicians determined his suicide risk was low due to his sobriety, ongoing psychiatric and medical care, and denial of thoughts, intent, or plan to harm self or others. He denied hallucinations and appeared oriented to place, person, situations, and time. In a December 2018 mental health note, the Veteran arrived on time for his scheduled treatment team meeting and was appropriately dressed. He maintained eye contact and spoke at a rhythm, rate, and volume appropriate to the environment. His affect was relaxed, and he was oriented to time, place, and person. He reported he had been able to obtain sobriety while in the residential rehabilitation program the prior month. He denied urges or craving to use alcohol or drugs. Although he reported having thoughts about being "better off dead" most of the days out of the week, he stated he continued to have a safety plan and would seek help as needed. In a December 2018 psychiatry note, the Veteran presented with improved mood. He endorsed no symptoms of psychosis and denied suicidal or homicidal ideations. He was instructed to continue current psychotropic medications. In a January 2019 psychology note, the Veteran reported that he had been feeling down over the past few days and had stopped taking all of his medications. He reported having passive suicidal ideation, but denied plan or intent. He was placed on a low risk for suicide level because he had no current suicidal ideations, plans or intent, and expressed a willingness to seek help and actively engage in treatment. In a February 14, 2019 comprehensive suicide risk screening at the DRRTP, the Veteran reported recent thoughts of engaging in suicide-related behavior within the past eight to 30 days. The Veteran stated that he thought about hanging himself with a belt. He was placed on an intermediate risk for suicide level. On February 27, 2019, the Veteran was discharged from the DRRTP and reported feeling well without any medical concerns. In a March 2019 mental health note, the Veteran scored a zero on the depression scale score. He reported feeling and sleeping better; denied any death wishes, suicidal ideas; and remained calm and cooperative in continuing with his recommended medication. The Veteran was hospitalized from July 13-18, 2019, and admitted under a diagnosis of substance induced mood disorder. A self-report from July 2020 claimed he was taken to the hospital for admission by law enforcement when he tried to jump off a bridge in Puerto Rico. The Veteran was hospitalized from December 6-13, 2019, and admitted under a diagnosis of major depressive disorder. A self-report from July 2020 claimed that he cut his wrists while he was driving. In April 2020 VA treatment records, the Veteran reported "doing okay" and taking his medications. He denied suicidal and homicidal ideations. In June 10-18, 2020, the Veteran was placed under a Baker Act and hospitalized due to a suicidal plan to hang himself with a belt. The Veteran was placed on the high risk for suicide list. It was noted: "Veteran is unable to function safely at lower level of care." He was seen by a treatment team, his medications were adjusted accordingly, and his suicidal ideation gradually subsided. At discharge, the Veteran reported improved depression, and no suicidal ideation or hallucinations. Notably, both the Veteran's wife and close friend reported that prior to this incident, they had been in regular contact with him during the couple of weeks preceding the hospitalization, and neither felt that there was an escalation of risk for self-harm. In a June 2020 suicide prevention note the Veteran spoke with the provider on the phone and reported he had been doing well since being discharged from the hospital. He reported no current suicidal ideations, but having chronic fleeting suicidal ideations; he denied a plan or intent. No auditory or visual hallucinations were reported. Notably, the Veteran told the provider, "I was just in the hospital for suicidal ideation because I sought out help and that anytime I feel like I cannot remain safe, I call the Veterans' Crisis line." In a July 2020 suicide prevention note, the Veteran self-reported prior suicidal behaviors, intents, and incidents. He reported the incidents previously mentioned from July 2019 and December 2019. Additionally, he reported an incident from May 2020 when he took a knife into the bathroom with the intent to cut his wrists, however his wife intervened. In a September 2020 social worker note, the Veteran sounded calm, coherent, logical, and fully oriented during a telephone call. He denied suicidal or homicidal ideas or plans. In October 2020 VA treatment records the Veteran reported that him and his wife were separated and in the process of a divorce. He denied "adamantly, empathically and firmly" any current death wishes, suicide ideas or plans. He denied hearing voices, hallucinations, or delusions. In an October 2020 psychiatry note, the Veteran presented with a "better" mood. He was coherent, logical, alert, and oriented to place, person, and time. His speech was spontaneous and fluent. He denied any current suicidal or homicidal ideas, wishes, or intentions. In November 2020 VA treatment records, the severity of the Veteran's depression on a scale of 1-27 was scored as a five: mild depression. He reported feeling down, depressed, and hopeless within the past two weeks. He denied suicide and homicide ideas, as well as auditory and visual hallucination. He reported abstinence from alcohol and cocaine. A February 2021 VA examination report indicated review of the claims file and medical records, recounted the Veteran's complaints and history, and included a physical examination of the Veteran. The Veteran reported depressed mood, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner determined the Veteran's level of occupational and social impairment included occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran appeared dysthymic, alert, and oriented to person, place, time, and purpose. There were no indications of derailment or any bizarre behavior. He denied suicidal or homicidal ideations, hallucinations, paranoia, delusions, obsessions, or compulsions. Insight and judgment were adequate. Recent and remote memories appeared to be appropriate. The examiner noted poor history of impulse control was reported and demonstrated. A separate February 2021 VA examination recounted the Veteran's complaints and history. The examiner noted the Veteran maintained the same job as a mechanic for 24 years until he lost his job after Hurricane Maria. The Veteran stated it is not possible to obtain a job currently due to his psychiatric condition and other health issues which are not service connected. The Veteran drove to the examination himself without any assistance. It was noted he appeared alert, active, oriented, and was able to walk without assistance or distance restrictions. The Veteran reported being able to perform all of the self-care skills, to include self-feeding, dressing, undressing, bathing, grooming, and toileting without assistance. The examiner opined he is capable of managing his financial affairs. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds a rating of 70 percent, but no higher, is warranted for the appeal period prior to November 8, 2018, and a rating of 100 percent is warranted for the appeal period post February 28, 2019. Appeal period prior to November 8, 2018 The assignment of a 70 percent disability rating for the appeal period prior to November 8, 2018, is based on the evidence of record, which has consistently demonstrated continuous depression and suicidal ideations. The Veteran was hospitalized due to self-harm in February 2017 for five days, May 2017 for six days, September 2017 for nine days, and February 2018 for five days. In July 2018 the Veteran was admitted to a psychiatric hospital for 10 days after reporting depressive symptoms, hopelessness, helplessness, feeling said, and suicidal ideas. At no point does the record indicate impairment commensurate with total occupational and social impairment reflected by the criteria for a 100 percent rating. Aside from February 2017, the Veteran has consistently denied hallucinations, and delusions. The record has demonstrated he has consistently presented as alert and oriented, cooperative, with intact memory. Specifically, in February 2018 and July 2018. Although there is a consistent record of hospitalizations due to self-harm, the Board does note that the Veteran intermittently denied suicidal and homicidal ideations around the same time. Specifically, in February 2017, May 2017, and August 2018. Ultimately, while the Veteran does have a record of hospitalization due to self-harm, the Board finds this is contemplated under the criteria for a 70 percent rating. The majority of hospitalizations were due to suicidal ideations and/or intoxication. During these times of admission, the Veteran was oriented to person, time, place, and situation, and denied hallucinations and delusions as illustrated in May 2017, September 2017, February 2018, and July 2018. Furthermore, the evidence does not indicate that these instances of suicidal ideations were so severe, frequent, or of a duration as to result in total occupational and social impairment. In fact, the November 2017 VA Vocational Rehabilitation record indicates the Veteran was able to maintain full-time employment as a mechanic during this time, and had been with the same hotel for the past 24 years. The Veteran stated in July 2018 that the hotel closed due to Hurricane Maria. The Board finds this his termination of employment was due to a natural diaster, not the service-connected condition. The Board finds that a higher rating of 100 percent is not warranted. A rating of 100 percent is warranted when the symptoms experienced by the Veteran are of a nature, frequency, severity, and duration so as to result in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Here, these symptoms are not present. Specifically, the Veteran was not totally occupationally and socially impaired during this time as he continued employment at the hotel; he did not experience gross impairment in thought processes or communication; he did not experience peristent delusions or hallucinations; he behaved appropriately; he was oriented to time and place; and his memory was intact. Therefore, a rating in excess of 70 percent is not warranted for this appeal period. Appeal period post February 28, 2019 The record has consistently reflected the Veteran is alert and oriented to person, place, and time. However, the Veteran was hospitalized at a DRRTP from November 8, 2018 to February 27, 2019. Since then, the Veteran was again hospitalized due to suicide attempts and/or self-harm from July 13-18, 2019, December 6-13, 2019, and June 10-18, 2020. During the June 2020 hospitalization, it was noted that the Veteran was "unable to function safely at lower level of care." The Board finds that the Veteran cannot stabilize without recurrent hospitalizations. Additionally, in October 2020, the Veteran reported that him and his wife were in the process of divorce. And in the February 2021 VA examination, the Veteran stated it was not possible to obtain a job currently due to his psychiatric condition. Here, there is no evidence that the Veteran has been able to obtain employment since the February 27, 2019 discharge. Indeed, the recurrent hospitalizations in conjunction with the reports of attempted suicide and/or self-harm indicate occupational and social impairment is at a persistently severe level. As such, the Board finds total occupational and social impairment which is indicative of a 100 percent rating. After review of the evidence as a whole, the Board finds an evaluation rating of 100 percent for unspecified depressive disorder, to include major depression, is warranted for the appeal period post February 28, 2019. [SIGNATURE ON NEXT PAGE] JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A.M. Edwards, 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.