Citation Nr: 21028680 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 17-02 791 DATE: May 11, 2021 ORDER A rating in excess of 70 percent for unspecified depressive disorder is denied. FINDINGS OF FACT For the entire appeal period, the Veteran's service-connected unspecified depressive disorder is not manifested by total occupational and social impairment. CONCLUSIONS OF LAW The criteria for a rating in excess of 70 percent for unspecified depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code 9413 have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from September 1969 to April 1971, to include service in Vietnam. His commendations and medals include the Combat Infantry Badge. The Veteran presented sworn testimony at a hearing before the undersigned in October 2020. In November 2020, the Board granted a 70 percent disability rating for mood disorder and remanded entitlement to a rating in excess of 70 percent for psychiatric disability and entitlement to a TDIU for additional development. In a March 2021 rating decision, the RO granted individual unemployability, effective January 30, 2009, the earliest possible date for a TDIU, the decision represents a full grant of the benefit sought, and the issue is no longer before the Board. This is true because both the Veteran, in his TDIU application, and the RO, determined that it was the combination of the Veteran's physical and psychiatric disabilities that combined to render him unable to work. The Board notes that during remand status the Veteran attempted to opt into the modernized appeal system by submitting a VA Form 10182, Decision Review Request: Board Appeal and elected the Hearing docket prior to the issuance of the SSOC in March 2021. See February 2021 Decision Review Request. An Appellant may, under certain circumstances, opt to elect consideration of a Legacy appeal under the AMA provisions. 38 C.F.R. § 3.2400. A claimant with a Legacy appeal may elect to opt-in to the modernized review system following issuance, on or after the effective date of the modernized system, of a VA statement of the case or supplemental statement of the case, by filing for a review option under the AMA. Id. No Supplemental Statement of the Case had been issued at the time of his AMA notice of disagreement filing, and so the February 2021 opt-in to AMA was therefore invalid. In addition, because the Veteran was attempting to "appeal" the November 2020 RO decision that implemented the Board's November 2020 grant of a 70 percent rating, it was not an initial adjudication by the RO. The AMA applies to all claims for which VA issues notice of an initial decision on or after the effective date of the AMA, which is February 19, 2019. See 38 C.F.R. §§ 3.2400, 19.2. Here, because the RO's November 2020 rating decision was not an initial decision, the appeal remains in Legacy. Id. A rating in excess of 70 percent for unspecified depressive disorder. The Veteran seeks a rating in excess of 70 percent for his unspecified depressive disorder. The Veteran's unspecified disorder is rated at 70 percent under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9413. A 70 percent evaluation is warranted where there is objective evidence demonstrating 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, or 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; and the inability to establish and maintain effective relationships. A 100 percent disability evaluation 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 and place; and memory loss for names of close relatives, own occupation, or own name. Id. The symptoms listed in Diagnostic Code 9411 are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002); see also Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013) (explaining that the symptoms that could give rise to a given rating are those in like kind, i.e., of similar duration, severity, and frequency, to those provided in the non-exhaustive lists). As noted, November 2020, the Board granted a 70 percent rating and remanded entitlement to a rating in excess of 70 percent for his psychiatric disability. The December 2016 VA examiner summarized the Veteran's impairment as 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. The Veteran reported the following symptoms: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a work-like setting. The examiner described the Veteran's mood as tense and somewhat depressed. His affective expression was irritable. The Veteran denied suicidal or homicidal ideation. See December 2016 Mental Disorder DBQ. The Veteran was afforded a VA examination in January 2021. The examiner summarized the Veteran's occupational and social impairment as occupational and social impairment with reduced reliability and productivity. Regarding social impairment, the Veteran reports his wife of 47 years has passed away. He reports that he is grieving and is maintaining close contact with mental health thru the VA. He reports that he is isolative but attends church. He reports performing activity of daily living daily. The Veteran reports that his symptoms persist and have worsened in the setting of his wife's passing and the pandemic. He remains in treatment thru the VA. He has no inpatient admissions. See January 2021 Mental Disorder DBQ. Regarding occupational impairment, the Veteran reports that he remains retired from work as an undercover police officer. He stated that he last worked 15 years ago at a radio station but left due to a verbal altercation with the program manager who made negative comments about Veterans. The examiner notes the Veteran had the following symptoms: depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss, such as forgetting names, directions or recent events; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty adapting in establishing to stressful circumstances, including work or a work like setting and impaired impulse control, such as unprovoked irritability with periods of violence. The examiner noted, the Veteran presented as adequately groomed and casually dressed. The Veteran was fully oriented to person, place, time and circumstance. He appeared subdued, with constricted affect. The Veteran's speech was clear and normal to rate and tone. His thought processes were congruent and goal directed. The examiner noted, there was no evidence of psychosis, delusions or perpetual disturbance. The Veteran denied homicidal and suicidal ideation. The examiner observed that overall the Veteran's judgment and insight appeared intact. Id. The frequency, severity, and duration of the Veteran's impairment and assessing his disability picture, the Board finds that the evidence of record demonstrates that disability due to the Veteran's psychiatric disorder has approximated the schedular criteria for an initial rating of 70 percent. See VazquezClaudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). The Board finds that the preponderance of the evidence is against a finding that the Veteran's unspecified depressive disorder more closely approximates total occupational and social impairment sufficient to warrant a rating of 100 percent. The evidence does not symptoms such 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, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any symptomatology otherwise consistent with total occupational and social impairment. In light of the foregoing, the Board finds that a rating in excess of 70 percent for mood disorder is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jacquelynn M. Jordan, 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.