Citation Nr: 21028429 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 05-15 480 DATE: May 11, 2021 ORDER An initial disability rating in excess of 30 percent for dysthymia versus mood disorder secondary to general medical condition is denied. A disability rating in excess of 70 percent from November 26, 2007 for dysthymia versus mood disorder secondary to general medical condition is denied. FINDINGS OF FACT 1. For the period from August 22, 2003 to November 26, 2007, the Veteran's service-connected dysthymia versus mood disorder secondary to general medical condition was shown to cause occupational and social impairment with occasional decreases in work efficiency and intermittent inability to perform occupational tasks. Symptoms causing occupational and social impairment with reduced reliability and productivity, with difficulty in establishing and maintaining effective work and social relationships, or were, were not demonstrated. 2. For the period beginning November 26, 2007, the Veteran's service-connected dysthymia versus mood disorder secondary to general medical condition resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, but has not resulted in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability evaluation in excess of 30 percent for dysthymia versus mood disorder secondary to general medical condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9433. 2. The criteria for entitlement to a disability evaluation in excess of 70 percent from November 26, 2007 for dysthymia versus mood disorder secondary to general medical condition 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 9433. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably on active duty from June 1987 to August 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2004 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, this claim stems from an appeal by the Veteran for an increased disability rating for his service-connected lumbar spine disability. In the January 2004 rating decision mentioned above, the Veteran was assigned a 40 percent disability rating for his service-connected lumbar spine disability from August 22, 2003. The Veteran appealed this disability rating to the Board. The Veteran's increased rating was initially denied in a March 2006 decision by the Board. The Veteran appealed this denial to the United States Court of Appeals for Veterans Claims (Court). In an October 2007 order, the Court vacated that Board's March 2006 denial, and remanded the case for development consistent with a Joint Motion for Remand (JMR). Subsequently, in March 2009 and May 2010, the Board remanded the increased rating claim for further evidentiary development to the Agency of Original Jurisdiction (AOJ). In a May 2012 decision, the Board again denied an increased rating for the Veteran's lumbar spine disability. However, the issue of entitlement to an extraschedular rating for the lumbar spine disability was remanded for referral to the Director of Compensation Service under 38 C.F.R. § 3.321(b)(1). Following this remand, in June 2014, the AOJ submitted a memorandum referring the increased rating claim to the Director of Compensation Service. However, the Director did not issue a recommendation addressing extraschedular evaluation. Subsequently, the Board remanded the claim for referral to the Director again in January 2017. In February 2018, the Director of Compensation Service found that the Veteran's service-connected lumbar spine disability did not require extraschedular rating. The claim returned to the Board and in October 2018, the Board granted a separate, 30 percent disability rating, but no higher for symptoms from the medications required to treat the Veteran's service-connected lumbar spine disability. The Board rated these symptoms by analogy as psychiatric symptoms under 38 C.F.R. § 4.130, DC 9433. The Veteran appealed the disability rating to the Court. In an August 2019 Joint Motion for Partial Remand (JMPR), the parties only challenged the portion of the Board's October 2018 decision that did not grant a rating in excess of 30 percent for symptoms associated with medication required to treat the Veteran's service-connected back disability. In an August 2019 order, pursuant to the aforementioned JMPR, the Court only vacated the part of the Board decision addressing the rating in excess of 30 percent and remanded the matter for further development and readjudication by the Board. Subsequently, the Board remanded the claim for a VA examination in January 2020. Prior to the return of the claim to the Board, in June 2020, the AOJ issued a rating decision assigning an effective date for the Veteran's service connection for symptoms from his medications required to treat his service-connected lumbar spine disability of August 22, 2003. Further, a February 2021 rating decision by the AOJ increased the disability rating for what is now categorized as dysthymia versus mood disorder secondary to general medical condition, from 30 percent to 70 percent disabling, effective November 26, 2007. Increased Ratings 1. An initial disability evaluation in excess of 30 percent for dysthymia versus mood disorder secondary to general medical condition is denied. 2. A disability evaluation in excess of 70 percent from November 26, 2007 for dysthymia versus mood disorder secondary to general medical condition is denied. The Veteran contends that the initial 30 percent disability rating and the current 70 percent disability rating assigned for his service-connected dysthymia versus mood disorder secondary to general medical condition are inadequate. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. The Veteran's service-connected dysthymia versus mood disorder has been evaluated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9433. A 30 percent rating is assigned when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally function satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9433. A 50 percent rating is warranted for 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent 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; memory loss for names of close relatives, own occupation, or own name. Id. The "such symptoms as" language of the diagnostic codes for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, as the Court also pointed out in that case, "[w]ithout those examples, differentiating a 30% evaluation from a 50% evaluation would be extremely ambiguous." Id. The Court went on to state that the list of examples "provides guidance as to the severity of symptoms contemplated for each rating." Id. Accordingly, while each of the examples needs not be proven in any one case, the particular symptoms must be analyzed in light of those given examples. Put another way, the severity represented by those examples may not be ignored. From August 22, 2003 to November 26, 2007 The evidence relevant to this period on appeal includes VA treatment records and a VA examination for the Veteran's service-connected lumbar spine condition. VA treatment records from February 2004 reflect that the Veteran began experiencing emotional effects from the pain and limitations of his service-connected lumbar spine disability. A February 3, 2004 VA treatment note references that the Veteran had a "strong emotional overlay" when performing physical testing for his spine condition. During this time period, the Veteran reported that his service-connected lumbar spine pain was a "6 out of 10 on a good day, and an 11 out of 10 on a bad day." The Veteran also reported that his pain was constantly aggravated by "almost any type of activity." The Veteran underwent a VA examination in February 2005 for his lumbar spine disability. During the mental status evaluation, the VA examiner found the Veteran to be "alert, cooperative, and oriented to time, place, and person and shows no impairment of speech, memory, or thinking." VA treatment records from December 2006 reflect that the Veteran reported his physical activity was extremely limited and that he felt like he had "gone downhill," and was constantly feeling sluggish. The Veteran reported that he had been "feeling depressed a lot lately[,]" and experiencing trouble sleeping. The VA treatment provider noted that the Veteran had a dysphoric mood, flattened affect, and was tearful at times during their encounter. The VA treatment provider referred the Veteran for a consult with mental health for the "apathy conjoined with dysphoric mood, no formal suicidal ideations expressed, though [the Veteran] did state that sometimes his back pain is so severe he thinks about getting a gun and shooting self." The VA treatment provider also performed a depression screening, which was abnormal, indicating that the Veteran may have been experiencing some depression. The Veteran reported during the screening that he often has been bothered by little interest or pleasure in doing things, and has been feeling down, depressed, and hopeless. The Board concludes that based on the available evidence summarized above, the Veteran's dysthymia versus mood disorder secondary to general medical condition most closely approximated the 30 percent rating assigned during this time. "Depressed mood," "anxiety," and "chronic sleep impairment" are symptoms explicitly listed under the criteria for the 30 percent rating. VA treatment providers also indicated that the Veteran exhibited flattened affect. The Board finds a higher 50 percent rating is not warranted because the majority of the symptoms the Veteran experienced more closely approximated those of a 30 percent rating. Neither the contemporaneous mental health treatment records from August 22, 2003 to November 26, 2007 show symptoms such as circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, impaired judgment or impaired abstract thinking, or other symptoms on par with the level of severity contemplated by those symptoms. The Board finds a higher 70 percent rating is not warranted because the majority of the symptoms the Veteran experienced more closely approximate those of a 30 percent rating. During this time period, the Veteran was not shown to suffer 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, spatial disorientation, neglect of personal appearance and hygiene, the inability to establish and maintain effective relationships, or other symptoms on par with the level of severity contemplated by those symptoms A higher, 100 percent rating is not warranted as the evidence of record does not support a finding that the Veteran exhibited the level of cognitive, occupational and social impairment that rendered him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. There were no deficiencies identified in the Veteran's thought processes or communication, nor was there any indication of disorientation, or grossly inappropriate behavior, as evidenced by the mental status evaluation of record for this period on appeal. As such, the preponderance of the evidence shows that the Veteran's psychiatric symptomatology does not more closely approximate the criteria for a 50, 70 or 100 percent disability rating under the general rating schedule for psychiatric disorders for this time period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In sum, a 30 percent initial disability rating adequately contemplates the Veteran's dysthymia versus mood disorder symptomatology as evidenced by the probative medical evidence of record the period beginning August 22, 2003 to November 26, 2007. From November 26, 2007 The Veteran underwent a VA psychiatric consultation on November 26, 2007. During the consultation, the Veteran reported that "over the last two to four years [I] have had a predominantly down, depressed, sad mood, feelings of occasional hopelessness , helplessness, noted decrease in energy, poor sleep patterns manifested by intermittent increases in latency, positive intermittent awakenings, and frequent early morning awakenings." The Veteran reported also reported residual fatigue throughout most days. The Veteran denied any suicidal ideation, but did admit to at times, wishing he were dead or even considering suicide due to severe low back pain. Upon mental status examination, the Veteran was alert and oriented to person, place, and time. The VA treatment provider indicated the Veteran presented with an anxious mood but overall was very affable and appropriate throughout. A VA memorandum for extraschedular rating for the Veteran's lumbar spine disability was submitted to the record in June 2014. The VA memorandum referenced a VA examination for the Veteran's spine in August 2010. The August 2010 VA examiner opined that the Veteran's dysthymia versus mood disorder, as a result of his service-connected lumbar spine condition, results in symptoms that affect his reliability, productivity, ability to concentrate and follow instructions but that they did not affect his ability to interact with co-workers and supervisors. The Veteran was recently afforded a VA examination for his mental disorder in January 2021. The VA examiner verified the Veteran's diagnosis as persistent depressive disorder (dysthymia) versus mood disorder secondary to general medical condition. During the examination, the Veteran reported that he suffered falls in February 2020 and May 2020, which resulted in injuries to his shoulder and aggravation of his long-standing service-connected back condition. The Veteran reported a noticeable increase in pain, which in turn, adversely impacted his overall mood and mental state. The VA examiner also noted that the Veteran's sleep hygiene "remains complicated, with bouts of hypersomnia." The Veteran reported use of a cane for ambulation, which makes him unable to participate in previously enjoyed activities. The Veteran indicated he and his spouse have been married for 25 years and described their marriage as "stable" but becoming increasingly tense and stressful. The Veteran reported that he is becoming more irritable towards his spouse and his extended family, largely due to his chronic pain and subsequent depression. Regarding current symptoms, the VA examiner indicated that the Veteran's psychiatric condition manifests itself in depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, impaired impulse control, such as unprovoked irritability with periods of violence, and neglect of personal appearance and hygiene. Upon behavioral observation, the VA examiner indicated that the Veteran was anxious and reserved, but as the session progressed and rapport was established, his demeanor and mood became more relaxed. The VA examiner noted that the Veteran maintained adequate eye contact and was attentive and engaged. The VA examiner stated that there were no overt signs of acute psychological distress. The VA examiner described the Veteran's thought process as "rationale, relevant, coherent, and future oriented" and indicated his hygiene and grooming were "adequate[.]" The VA examiner indicated no delusional ideations or mania were presented and the Veteran was oriented in all spheres, with attention and concentration grossly intact. The VA examiner noted that the Veteran also experiences hypersomnia, irritability, social avoidance, distractibility, limited capacity for stress tolerance, and continued vacillations specific to mood, largely secondary to his chronic pain. The VA examiner indicated that overall, the Veteran's condition results in occupation and social impairment with reduced reliability and productivity. Based on the above, the Board finds that the Veteran's depressed mood, impaired impulse control, such as unprovoked irritability with periods of violence, neglect of personal appearance and hygiene, difficulty in establishing and maintaining effective work and social relationships and difficulty adapting to stressful circumstances, including work or a work like setting, more closely approximate the 70 percent rating criteria. A higher, 100 percent rating is not warranted as the evidence of record does not support a finding that the Veteran has exhibited the level of cognitive, occupational and social impairment that render him totally occupationally and socially impaired as a result of the type of symptoms listed in the general rating schedule or symptoms of a similar degree. Although the presence or absence of certain symptoms is not dispositive to the issue of the proper disability rating, the presence or absence of symptoms is useful in determining the severity of the condition. There have been no deficiencies identified in the Veteran's thought processes or communication, nor has there been any indication of disorientation, or grossly inappropriate behavior, and he has never reported memory loss of the severity contemplated by a 100 percent rating, or other symptoms on par with the level of severity contemplated by those symptoms. The treatment records and VA examination reports were not indicative of occupational and social impairment that approximate the criteria for a 100 percent. Thus, in sum, the current 70 percent disability rating adequately contemplates the Veteran's dysthymia versus mood disorder symptomatology as evidenced by the probative medical evidence of record for the period beginning November 26, 2007. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.