Citation Nr: 21030377 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-11 953 DATE: May 18, 2021 ORDER Entitlement to an increased 100 percent rating for major depressive disorder (MDD) is granted. FINDING OF FACT The Veteran's major depressive disorder (MDD) is reasonably shown to have symptoms most equivalent to manifestations resulting in total occupational and social impairment. CONCLUSION OF LAW The criteria for a disability rating of 100 percent for MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Air Force from March 1984 to March 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision. Previously, the claim was before the Board in June 2019 and the matter was remanded for the issuance of a supplemental statement of the case (SSOC). The Board finds the prior remand directives have been substantially complied with and the case is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). During the course of the appeal entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) was granted in a September 2020 rating decision effective October 1, 2013. As such represents a full grant of benefits sought on appeal this issue is no longer before the Board. A 100 percent rating is granted for MDD is granted. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. MDD is rated under Code 9434 and the General Rating Formula for Mental Disorders, which provides for a 100 percent rating 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. A 70 percent rating is warranted for 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. 38 C.F.R. § 4.130. In Mauerhan v. Principi, 16 Vet. App. 436 (2002), the United States Court of Appeals for Veterans Claims noted that the list of symptoms in the Board's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather is to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and "staged" ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). The Veteran's MDD has been rated as 70 percent disabling during the appeal period under Diagnostic Code 9434. Herein, the Board finds that an increased 100 percent rating is warranted for the entire period on appeal. In September 2013 correspondence, the Veteran's private psychiatrist noted that the Veteran was being treated with psychiatric medications as well as individual therapy. The provider noted significant anxiety, irritability, depression, insomnia, and poor concentration. The provider opined that due to the Veteran's symptoms he was incapable of being employed. A September 2013 individual therapy record noted that the Veteran's symptoms were getting worse. It was noted that the Veteran relied on his caretaker to manage his medications (due to increasingly worse memory on the Veteran's part). It was noted that the Veteran's panic attacks had increased and his depression had worsened and become more frequent. It was noted that the Veteran was totally dependent on his friends to manage his life. On August 2014 mental disorders DBQ, the diagnoses were severe MDD and anxiety disorder. Occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, thanking and/or mood was noted. Symptoms of depressed mood, anxiety, panic attacks (occurring weekly or less often), near continuous panic or depression affecting the ability to function independently, appropriately and effectively, chronic sleep impairment, mild memory loss (such as forgetting names, directions or recent events), impairment of short and long term memory, 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 worklike setting, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) were noted. Additional symptoms of concentration difficulties with short term memory impairment (needs caregiver to organize and administer his medications), fatigue, low energy, intense physical pain with ambulating, often needs assistance with performing basic activities of daily living. The Veteran reported significant difficulty connecting with and trusting people. The Veteran reported a history of suicidal ideation and denied any plan or intent. In October 2014 correspondence, the Veteran's private provider noted the Veteran was undergoing treatment for depression and anxiety. Treatment was noted as individual therapy and psychiatric medications. It was noted that the Veteran experienced significant anxiety, irritability, depression, insomnia, and poor concentration. It was noted that due to his service-connected disabilities he was not capable of employment. On February 2016 mental disorders DBQ, the diagnoses were MDD and anxiety disorder. Occupational and social impairment with reduced reliability and productivity was noted. Symptoms were noted as depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, flattened affect, and difficulty in adapting to stressful circumstances. In an April 2016 medical opinion, the clinician opined that the Veteran was limited to simple, low-stress jobs that allow him to work at his own pace with minimal distraction. As the matter before the Board is an initial claim for an increase, the analysis begins with whether a rating in excess of 70 percent is warranted. Throughout the pendency of the appeal the Veteran has been shown to have difficulty tending to basic activities of daily living (to include taking medication due to memory problems associated with MDD). Throughout the pendency of the appeal, the Veteran's reliance on his caregiver for basic needs has been noted, and well as reliance on the assistance of friends to complete activities of daily living. Private as well as VA providers have noted a worsening of symptoms. Symptoms of MDD have often been described as severe. As such the Board finds that the Veteran's MDD has been manifested by total occupational social impairment during the period on appeal. Considering the foregoing, and resolving remaining reasonable doubt in the Veteran's favor as required (see 38 C.F.R. § 4.3), the Board finds that the disability picture described of the Veteran's MDD is most equivalent to the criteria for a 100 percent rating. Accordingly, the Board finds that a 100 percent rating is warranted for MDD. K.R. Kardian Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Staskowski, 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.