Citation Nr: 21028658 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 18-49 143 DATE: May 11, 2021 ORDER Prior to January 23, 2018, an initial rating in excess of 30 percent for major depressive disorder with secondary alcohol use disorder is denied. From January 23, 2018, to March 4, 2021, an initial rating of 50 percent, but no higher, for major depressive disorder with secondary alcohol use disorder is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT 1. Prior to January 23, 2018, the Veteran's major depressive disorder with secondary alcohol use disorder was manifested by psychiatric symptomatology resulting in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, without more severe manifestations that more nearly approximate occupational and social impairment with reduced reliability and productivity, occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. 2. From January 23, 2018 to March 4, 2021, the Veteran's major depressive disorder with secondary alcohol use disorder was manifested by psychiatric symptomatology resulting in occupational and social impairment with reduced reliability and productivity, without more severe manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. CONCLUSION OF LAW 1. Prior to January 23, 2018, the criteria for an initial rating in excess of 30 percent for major depressive disorder with secondary alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. From April 23, 2018, to March 4, 2021, the criteria for an initial rating of 50 percent, but no higher, for major depressive disorder with secondary alcohol use disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, DC 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2005 to May 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in June 2018 by a Department of Veterans Affairs (VA) Regional Office. In June 2020, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In January 2021, the Board remanded the claim for additional development. While on remand, in a March 2021 rating decision, the Agency of Original Jurisdiction (AOJ) awarded a 100 percent rating for major depressive disorder with secondary alcohol use disorder, effective March 4, 2021. As such is the highest possible rating for such disability, the Veteran's claim for an increased rating for such disability is moot as of such date. Consequently, the Board has recharacterized the issue as shown on the title page. The case now returns for further appellate review. Entitlement to an initial rating in excess of 30 percent for major depressive disorder with secondary alcohol use disorder prior to March 4, 2021. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board begins on December 19, 2011, the date service connection for major depressive disorder with secondary alcohol use disorder was established. In this regard, such disability is rated as 30 percent disabling as of such date and 100 percent disabling as of March 4, 2021, pursuant to DC 9434, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. As noted previously, as a 100 percent rating is the maximum rating for a disability, the Veteran's claim for a higher initial rating for his psychiatric disability is moot as of March 4, 2021. Under the General Rating Formula, a 30 percent rating is warranted when 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, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating contemplates 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; impairments of short-and long-term memory; impaired judgment; impaired abstract thinking; disturbance of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent evaluation is warranted where 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; 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted where 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. As the United States Court of Appeals for the Federal Circuit explained, evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation. VazquezClaudio v. Shinseki, 713 F.3d 112, 11617 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation... requires an ultimate factual conclusion as to the Veteran's level of impairment in 'most areas.'" Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, DC 9434. Further, when evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and must also "assign an evaluation 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). In Bankhead v. Shulkin, 29 Vet. App. 10 (2017), the United States Court of Appeals for Veterans Claims (Court) held that the language of the General Rating Formula "indicates that the presence of suicidal ideation alone...may cause occupational and social impairment with deficiencies in most areas." However, as recognized by the Court, VA must engage in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of a veteran's service-connected psychiatric disability, and their resulting social and occupational impairment. The Board notes that the revised DSM-5, which, among other things, eliminates Global Assessment of Functioning (GAF) scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider any previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, 29 Vet. App. 221 (2018). After a review of the record, the Board finds that prior to January 23, 2018, an initial rating in excess of 30 percent for the Veteran's major depressive disorder with secondary alcohol use disorder is not warranted. However, from January 23, 2018 to March 4, 2021, the Board finds that an initial 50 percent rating, but no higher, for such disability is warranted. In this regard, the Veteran underwent individual counseling sessions with a private treatment provider, Dr. D.T., from February 2011 to August 2012. During this time, records indicate symptoms of depression, anger, irritability, and difficulty sleeping. Mental status examinations during this time were all normal. At an April 2012 VA examination, the Veteran reported anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships; however, he denied current suicidal or homicidal ideation, intentions, or plans. With respect to the Veteran's social functioning, he reported to have good relationships with his parents, girlfriend, two of his cousins, and some friends. After his discharge from service, he reported that he lived with friends; however, due to excessive drinking and an inability to cope, he moved in with his parents. The report also indicates that he enjoyed playing golf, fishing, hunting and exercised daily. Additionally, the Veteran reported that he graduated with a bachelor's degree the previous year and was working with a phone company as a sales consultant. While he noted that he was relatively successful with his work, he did not find it particularly rewarding. Based on the foregoing, the April 2012 VA examiner ultimately found that the Veteran's major depressive disorder with secondary alcohol use disorder resulted in occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks. Additionally, at the time of the examination and in an April 2012 statement the Veteran reported excessive alcohol use and stated that he goes out drinking one to two times per week, at which he consumes about 12 drinks. At times, drinking has led to the use of other drugs. He also reported that he has difficulty setting limits, and he drinks to cope with his feelings and things that are bothering him. Moreover, while the Veteran reported that he engaged in cutting in 2006 and had attempted suicide in 2009 by crashing his truck, the Board again notes that he denied suicidal ideations at the time of the April 2012 VA examination. Statements by friends and family submitted in April 2012 report that the Veteran has had feelings of depression and purposelessness, and difficulty maintaining relationships since his separation from service. Specifically, his uncle reported that the Veteran was unable to control his emotions, had bouts of deep depression, was unfocused, struggled to pass his college courses, and did not enjoy fishing and golf as much as he used to. He also indicated that the Veteran was unable to sustain relationships that lasted for any length of time. In a January 2018 Disability Benefits Questionnaire (DBQ) completed by Dr. A.H., a private psychologist, the Veteran reported symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, reduced interest in activities, irritability, and reduced concentration. His mental status examination was normal. In regard to social functioning, the Veteran reported that he had been married for five years with two children, but his marriage could be better. He also stated that he had a small circle of friends and had good relationships with his parents. Further, while he lost interest in some things, he continued to enjoy hunting and building things with wood. The Veteran also reported that he had worked in sales for majority of the past six years, but recently became the director of an office at a university, a position he has held for 8 months. While the schedule at his new job allowed him to be home with his family more and was an improvement over his previous job, he stated that he did not love it. Overall, the examiner found that his major depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. In May 2018, the Veteran's treating provider, D.W., a certified physician's assistant, recommended medical withdrawal from the Veteran's spring semester. In a September 2019 statement, the Veteran's wife stated that he continues to struggle and no longer has direction for his life. She also described the difficulties in their marriage, to include difficulty communicating and little to no intimacy. Finally, she noted that he drinks to avoid reality and "because he cannot bear his past, cannot comprehend his future and cannot bear anymore loss." In March 2020, D.W. noted that the Veteran had been suffering from severe life impacting events recently, including suicidal ideation, alcohol abuse, and panic attacks. He further reported that such events were resulted in him taking time away from work and caused marital problems. Similarly, at the June 2020 Board hearing, the Veteran reported difficulties in his marriage and excessive drinking. He also testified that he drinks so that he can have feelings; however, it places an emotional and financial burden on his family and friends. He reported difficulty concentrating and focusing on work and maintaining relationships with his co-workers, and regularly falling asleep while at work. He recently had to withdraw from his master's program due to panic attacks and inability to handle the additional stress. Finally, the Veteran endorsed suicidal ideations; however, he denied any plans or intent. Pursuant to the January 2021 remand, the Veteran underwent a VA examination on March 4, 2021, which is the basis for his 100 percent rating. As relevant to the appeal period prior to such date, he reported that he became more isolated from his work and co-workers due to COVID-19 restrictions, goes late to work, and avoids contact with others. He continued to endorse marital problems and excessive alcohol use. Following a full review of the record, the Board finds that an initial rating in excess of 30 percent for the Veteran's major depressive disorder with secondary alcohol use disorder for the appeal period prior to January 23, 2018, is not warranted. In this regard, the record reflects that, during such time, his psychiatric disability was manifested by symptomatology, to include anxiety, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships, which resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods or inability to perform occupational tasks. In this regard, the entirety of the Veteran's major depressive disorder symptomatology, with the exception of his disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, is contemplated in the currently assigned 30 percent rating under the General Rating Formula. In this respect, while the Veteran reported mood lability as well as difficulty with relationships and friendships, the evidence of record reveals that the nature, frequency, severity, and duration of such symptomatology do not more nearly approximate occupational and social impairment with reduced reliability. In this regard, during such time period, the Veteran maintained good relationships with his parents, girlfriend (whom he married during the appeal period), two of his cousins, and some friends. Moreover, the Veteran graduated with his bachelor's degree and maintained successful work as a salesman with a phone company. Furthermore, in consideration of the totality of the Veteran's reported symptomatology, to include disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships, the April 2012 VA examiner found that his psychiatric disability resulted in, at most, occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, which is consistent with a 10 percent rating under the General Rating Formula. Thus, the Board finds that an initial rating in excess of 30 percent for the Veteran's major depressive disorder prior to January 23, 2018, is not warranted. However, as of such date, the Board resolves all doubt in the Veteran's favor and finds that his psychiatric symptomatology had increased in severity so as to warrant an initial 50 percent rating. In this regard, the Board notes that such rating is assigned as a result of the DBQ completed by Dr. A.H. on such date. In this regard, the Veteran reported increased and additional symptoms of depressed mood, chronic sleep impairment, disturbances of motivation and mood, reduced interest in activities, irritability, and reduced concentration. Furthermore, while he remained married, he reported room for improvement, a fact which his spouse reiterated in September 2019 when she reported marital difficulties involving difficulty communicating and little to no intimacy. Nonetheless, the Veteran continued to maintain a small circle of friends and had good relationships with his parents. Further, he reported that he had worked in sales for majority of the past six years, and recently became the director of an office at a university, a position he has held for 8 months. Nonetheless, in May 2018, he withdrew from his master's program due to an inability to cope with the additional stress. Furthermore, in consideration of the totality of the Veteran's symptomatology, Dr. A.H. found that the Veteran's psychiatric symptomatology resulted in occupational and social impairment with reduced reliability and productivity, which is consistent with 50 percent rating under the General Rating Formula. Thus, as of January 23, 2018, the Board finds that an initial 50 percent rating for the Veteran's major depressive disorder with secondary alcohol abuse is warranted. However, a rating in excess of 50 percent is not warranted as the evidence does not that the Veteran's psychiatric disability results in occupational and social impairment with deficiencies in most areas, or total occupational and social impairment. In this regard, prior to March 4, 2021, the evidence does not show the presence of any of the symptoms noted to be indicative of such ratings under the General Rating Formula. Furthermore, while the Veteran reported cutting in 2006 and a suicide attempt in 2009, such was prior to the date of service connection and, while he reported suicidal ideation in March 2020 and June 2020, such was not shown to be of a nature, frequency, severity, or duration to result in greater functional impairment than occupational and social impairment with reduced reliability and productivity. In this regard, as noted previously, the Veteran has maintained relationships, albeit strained at times with multiple family members and friends, and successfully performed his work duties, to include securing a new job. Consequently, as directed by the Court in Bankhead, supra, the Board has engaged in a holistic analysis in assessing the severity, frequency, and duration of the signs and symptoms of the Veteran's service-connected psychiatric disability, to include his reports of suicidal ideation, and their resulting social and occupational impairment, and finds that such does not result in greater functional impairment than occupational and social impairment with reduced reliability and productivity. Thus, as of January 23, 2018, an initial rating in excess of 50 percent for such disability is not warranted. The Board has also considered whether additional staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected major depressive disorder with secondary alcohol use disorder; however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning additional staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (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). In reaching the foregoing determinations, the Board has resolved all doubt in the Veteran's favor, which has resulted in the award of an initial 50 percent rating for his major depressive disorder with secondary alcohol use disorder from January 23, 2018 to March 4, 2021. However, insofar as the Board has denied an initial rating in excess of 30 percent prior to January 23, 2018, and in excess of 50 percent thereafter for such disability, the preponderance of the evidence is against such aspects of the Veteran's claim. Therefore, the benefit of the doubt doctrine is not applicable, and his initial rating claim must otherwise be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Waite 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.