Citation Nr: 21028048 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 16-19 372 DATE: May 10, 2021 ORDER Entitlement to a disability rating in excess of 50 percent for depression, prior to January 24, 2020, is denied. Entitlement to a disability rating in excess of 70 percent for depression, on and after January 24, 2020, is denied. FINDINGS OF FACT 1. Prior to January 24, 2020, the severity, frequency, and duration of the Veteran's depression symptoms most closely approximated occupational and social impairment with reduced reliability and productivity. 2. On and after January 24, 2020, the severity, frequency, and duration of the Veteran's depression symptoms did not more closely approximate total occupational and social impairment. CONCLUSIONS OF LAW 1. Prior to January 24, 2020, the criteria for an evaluation in excess of 50 percent for depression have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. On and after January 24, 2020, the criteria for a disability rating in excess of 70 percent for depression have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1966 to March 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in May 2019 and were remanded for additional development. The case is once again before the Board. The matters of service connection for bilateral upper extremity neuropathy and chronic kidney disease with nephrolithiasis (claimed as kidney condition) were before the Board in May 2019 and remanded for additional development. Subsequently, service connection for bilateral upper extremity neuropathy and chronic kidney disease with nephrolithiasis (claimed as kidney condition) was granted in a July 2020 rating decision. As this represents a full grant of the benefits sought on these matters, there remains no controversy for Board consideration regarding these issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). The issue of entitlement to a total disability rating based on individual unemployability (TDIU) was also granted by the RO in the July 2020 rating decision effective March 22, 2010 based on the Veteran's service-connected disabilities of depression, diabetes mellitus, right foot shrapnel wound and tinnitus. As the TDIU was awarded throughout the appeal period, such is considered a full grant of the benefit sought on appeal with regard to his TDIU claim. The Board acknowledges that the RO stated that the grant was a partial grant, however this is inaccurate. The Veteran filed a claim for TDIU in April 2017. Prior to April 2017, the Veteran filed a claim for TDIU in July 2010 which was denied in a June 2011 rating decision. He initiated an appeal of this decision and a Statement of the Case was issued; however, he did not perfect an appeal with the timely submission of a VA form 9 or its equivalent. Subsequently, in November 2013, an increased rating claim was initiated following a proposed reduction of the Veteran's depression disability rating. To the extent TDIU is part of the Veteran's claim for an increased disability rating that stems from the November 2013 proposed rating reduction, the grant of TDIU has also been awarded throughout the appeal period. Harper v. Wilkie, 30 Vet. App. 356 (2018). In sum, TDIU was awarded throughout the appeal period, such is considered a full grant of the benefit sought on appeal and is no longer before the Board. Entitlement to an increased rating for depression The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for an increased rating. The Veteran's depression is currently evaluated as 50 percent disabling prior to January 24, 2020, and 70 percent on and after January 24, 2020. For the reasons set forth below, the Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher, prior to January 24, 2020; and at no time during the appeal period did the Veteran's symptoms cause the level of impairment required for a disability rating of 100 percent. Legal Criteria Under the General Formula for Mental Disorders (General 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 A noncompensable rating is assigned when a mental condition has been formally diagnosed, but symptoms are not severe enough to either require continuous medication, or to interfere with occupational and social functioning. A 10 percent rating is assigned when mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of occasional stress, or symptoms controlled by medication cause occupational and social impairment. A 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause 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 normal conversation). A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned 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; or memory loss for names of close relatives, own occupation or own name. Prior to January 24, 2020 The evidence of record shows the Veteran's depression was manifested by symptoms associated with a 50 percent rating such as disturbances in motivation and mood, and difficulty establishing and maintaining effective work relationships. Suicidal ideation was also reported, which is associated with a 70 percent rating. He also had symptoms that are not listed with a specific rating, such as sadness, increased appetite, low motivation, and poor concentration. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Further, sadness, increased appetite, low motivation, and poor concentration are similar to disturbances of motivation and mood, which is contemplated by a 50 percent rating. In April 2013, a VA examiner stated the Veteran had 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. The Veteran reported that he divorced in 2010 after 41 years of marriage, and had been involved in romantic relationships since then, "but not serious." The Veteran stated that he spent most of his day watching television, but would see his brothers once a week to play pool or make wine. In January and August 2014, the Veteran's private physician submitted duplicate statements indicating that the Veteran was diagnosed with depression and was fully and permanently disabled and not expected to return to work in the near future. The physician's statement did not describe any symptomatology the Veteran was experiencing at the time. Private treatment records from the same physician reported that the Veteran's symptoms are well managed with medication, his appearance was always appropriate, and his thoughts were appropriate. In March 2016, a VA examiner reported the Veteran had posttraumatic stress disorder (PTSD) and depression. The examiner was able to distinguish which symptoms were attributable to each diagnosis. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). The examiner stated that the depression symptoms included: sleep disturbance, loss of interest, negative mood, impaired concentration, daily sadness with tearfulness, avoidance of nearly all formerly pleasurable activities, low energy, recurrent thoughts of death and occasional suicidal ideation. The Veteran's other symptoms (intrusive memories, nightmares, flashbacks, avoiding thoughts about his war experience, feeling distant from others, irritability, hypervigilance, and hyper startled) were attributed to his nonservice-connected PTSD. The March 2016 examiner found the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner stated the Veteran's descriptions of thoughts and behaviors that interfere with his occupational and social functioning are more related to his depression (about 75 percent), with the most interfering symptoms being sadness, impaired concentration, and focus, and low energy. In July 2017, a VA examiner also reported the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner noted this "was not the examiner's specific expertise and the opinion being given is, therefore, speculative and impressionistic to an almost unacceptable degree. This is especially true if there is no recent work sample. It is also problematic that the DBQ lumps social and employment function together as though they are interchangeable." The examiner noted symptoms of depressed mood, anxiety, difficulty establishing and maintaining effective work relationships, suicidal ideation and marginal hygiene. Although the examiner stated the Veteran presented with marginal hygiene, the examiner also stated that the Veteran was capable of handling his own affairs. In light of the examiner's statement that his opinion was "speculative and impressionistic to an almost unacceptable degree," the Board affords this examiner's opinion no probative weight. A review of the record shows that the Veteran receives treatment at the VA Medical Center for various disabilities. However, there is no indication from the record that his depressive disorder symptoms are manifestly different than those reported at above-mentioned VA examinations. The Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The March 2016 examiner stated the Veteran has recurrent thoughts of death and occasional suicidal ideation but does not formulate a plan and denies intent. In July 2017. The Veteran reported that despite his medication, he continued to have thoughts of suicide, but had not formulated a plan and denied any intent. Treatment records both prior and subsequent to the 2016 and 2017 examinations report the Veteran regularly denied thoughts, intent, or a plan involving self-harm. Regarding relevant educational and occupational history, the Veteran completed high school. He worked as a marketing manager for 34 years and retired in 2007. The level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Board acknowledges that the March 2016 examiner stated the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood, however the Veteran's overall disability picture more closely approximates the criteria for a 50 percent rating. The Veteran's private treatment records report that the Veteran's symptoms are well managed with medication, his appearance was always appropriate, and his thoughts were consistently noted as appropriate. While the Veteran did experience suicidal ideation, which is contemplated by a 70 percent rating, the evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. As noted above, the Veteran's other remaining symptoms were either contemplated by or more consistent with a 50 percent rating. Despite the March 2016 examiner's statement regarding the Veteran's occupational and social impairment, the record overall (to include the 2016 examination) does not demonstrate a disability picture consistent with a 70 percent rating. Records prior and subsequent to the 2016 examination report that the Veteran's symptoms are well managed with medication, his appearance was always appropriate, and his thoughts are appropriate. The records do not demonstrate that the Veteran had obsessional rituals, illogical, obscure, or irrelevant speech; near-continuous panic attacks or depression affecting his ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; or neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including a work or work-like setting); inability to establish and maintain effective relationships; or other symptoms of similar severity, frequency, and duration. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 70 percent rating. The criteria for a 70 percent or higher rating are not met prior to January 24, 2020. On and after January 24, 2020 As noted above, the Veteran's depression has been rated as 50 percent disabling prior to January 24, 2020, and 70 percent disabling thereafter. For the reasons set forth below, the Board finds that, a 100 percent rating is not warranted at any point during the appeal period. The Veteran has not demonstrated the symptoms associated with a 100 percent rating, or other symptoms of similar severity, frequency, and duration. The evidence of record does not establish that there has been gross impairment in his thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting himself or others; an intermittent inability to perform activities of daily living; disorientation to time or place; or any other symptoms of a similar type, degree, or effect during the appeal period. In January 2020, a VA examiner stated the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran noted that he spends most of his day in his bed and has little motivation. He endorses spouts of crying for no apparent reason. Regarding thoughts of suicide or self-harm, in January 2020, the Veteran stated he had intermittent thoughts of death as an escape plan, though he denied any current suicidal plan or intent. The record does not demonstrate that the Veteran's suicidal ideation has risen to the level of persistent danger of hurting himself or others. The preponderance of the evidence of record reflects that from January 24, 2020, the Veteran's depression related symptomology was reflective of, at most, occupational and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. An increased 100 percent disability rating is not warranted at any point during the appeal period. The evidence does not demonstrate that his symptoms are so severe as to cause total social and occupational impairment. In that regard, the Veteran has not been shown to exhibit any gross impairment in thought processes or communication, delusions or hallucinations, inappropriate behavior, disorientation to time or place, a persistent danger to himself or others, or any symptoms of a similar type, degree, or effect during the appeal period. Further, while the Veteran has been granted a total disability rating based on individual unemployability, he was not totally socially impaired. The record demonstrates that the Veteran remarried. He stated that he lacks interest in socializing; however, he sees his family every two weeks and continues to run errands with his spouse. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met and the appeal must be denied. . M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.V. Palatt, 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.