Citation Nr: 21030407 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-30 666 DATE: May 18, 2021 ORDER Entitlement to a rating in excess of 70 percent for persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder, is denied. FINDING OF FACT 1. The Veteran's persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder is characterized by occupational and social impairment with deficiencies in most areas; however, it is not characterized by symptoms resulting in total social and occupational impairment. CONCLUSION OF LAW 1. The criteria for an increased disability rating in excess of 70 percent for persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9433. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United Sates Army on active duty from August 1999 to June 2001. In August 2015, the Veteran filed a VA Form 21-526EZ requesting and increased rating for his service-connected major depressive disorder. See August 2015 VA Form 21-526EZ. Therefore, the proper evidentiary appeals window starts one-year prior, in August 2014. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) dated in October 2015. In May 2016, the Veteran filed a VA Form 21-0958 notice of disagreement (NOD). See May 2016 VA Form 21-0958 NOD. The Veteran subsequently perfected his appeal in June 2016 by filing a VA Form 9 wherein, he indicated that he did not want a Board of Veterans' Appeals (Board) hearing. See June 2016 VA Form 9. Increased Rating The Veteran is seeking a higher rating for persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder that he contends has worsened since his 70 percent rating, effective from November 26, 2012. Specifically, the Veteran contends that his conditions cause anxieties that he will lose his job due to past incidences at work related to his disabilities. See December 2020 Informal Conference Worksheet; October 2014 VA Form 21-4138 Statement in Support of Claim. Further, the Veteran's representative contends the Veteran's symptoms are consistent with a 100 percent rating. Specifically, the Veteran's symptoms consistently interfere with his ability to perform routine activities. The representative quoted the June 2020 VA examination report, noting the Veteran struggles with sleep, abnormal appetite, inability to concentrate, daily panic attacks, personal hygiene, maintaining family relationships, suicidal ideations, and does not get along with coworkers. The representative contends, that although the Veteran does not exhibit all of the symptoms contemplated for a 100 percent rating, his disability nearly approximates the criteria for a 100 percent rating. See September 2020 Appellate brief. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 frequency, severity, 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). Under the General Formula, a 70 percent rating is assigned when there is occupational and social impairment, with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood), and the impairment is attributable to 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. A 100 percent rating is assigned when there is total occupational and social impairment due to 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 (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. 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. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, the list of examples set forth for each rating does provide guidance as to the severity of symptoms contemplated for that rating. Id. Accordingly, while each of the examples needs not be proven in any one case, the symptoms must be analyzed considering those given examples. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall 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 examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. Relevant Factual Evidence By way of history, the Veteran was first found service-connected for persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder (originally classified as an acquired psychiatric disorder, diagnosed as major depressive disorder, claimed as depression, panic disorder, and generalized anxiety disorder) in a rating decision dated in July 2011, with an evaluation of 30 percent effective June 20, 2001. An evaluation of 10 percent effective January 21, 2004. An evaluation of 30 percent effective November 25, 2009. See July 2011 Rating Decision. In a rating decision dated August 2013, the Veteran's rating was increased to 70 percent effective from November 26, 2012. See August 2013 rating Decision. In a rating decision dated May 2016, the Veteran was temporarily evaluated at 100 percent effective August 11, 2010 through October 1, 2010. See May 2016 Rating Decision. Mental health treatment records from Lyons VA Medical Center in New Jersey dated in September 2014, noted the Veteran as having an appropriate mood and affect, denying homicidal and suicidal ideations, and no notations of delusions or hallucinations. See September 2014 Lyons VA Medical Center at 8-11. The clinician opined the Veteran has access to positive social support, is future oriented, and verbalizes hope. Id. at 8. In February 2015, the Veteran reported to a VA mental disorders (other than PTSD and eating disorders) disability benefits questionnaire (DBQ), where the examiner diagnosed him with major depressive disorder and alcohol use disorder (considered secondary to major depressive disorder). See February 2015 VA Mental disorders DBQ. The examiner noted the Veteran does not have a diagnosed traumatic brain injury (TBI). Id. at 1. During the examination the Veteran reported that he had few friends or supporters other than his children due to his symptoms of avolition, anhedonia, irritability, and lack of energy. Id. at 3. The Veteran reported resigning from his most recent job in September 2014; however, the examiner noted that psychological assessments from September 2014 indicate he lost his job due to alcohol relapse. Id. at 3. The examiner noted the Veteran's symptoms as depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, 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), inability to establish and maintain effective relationships, and intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene). Id. at 5. However, the examiner opined that "[w]hile some of the Veteran's symptoms have worsened since his previous exam [in June 2013] ... [he] does not at this time meet [the] threshold for total occupational and social impairment." Id. at 5. The examiner supported her findings by noting the Veteran maintains relationships with his children, does not report or exhibit symptoms of hallucinations, and does not report or exhibit symptoms of suicidal or homicidal ideations. Id. at 5-6. Mental health treatment records from Lyons VA Medical Center in New Jersey, dated February 2015 through April 2015 consistently noted the veteran as having denied suicidal and homicidal ideations as well as denying auditory and visual hallucinations. See February 2015 Lyons VA Medical Center at 59-68. Specifically, the Veteran reported that he finds his medication beneficial and would like to continue. Id. at 62. Mental health treatment records from Lyons VA Medical Center in New Jersey, dated May 2015 through July 2015 consistently noted the veteran as having denied suicidal and homicidal ideations as well as denying auditory and visual hallucinations. See May 2015 Lyons VA Medical Center at 2-10. Specifically, the Veteran reported that he finds his medication and current treatment beneficial, providing good control and would like to continue. Id. at 5. In September 2015, the Veteran reported to a VA mental disorders (other than PTSD and eating disorders) DBQ, where the examiner diagnosed him with major depressive disorder and alcohol use disorder in sustained remission. See September 2015 VA Mental disorders DBQ. The examiner noted the Veteran exhibited the same symptoms as he did at the February 2015 examination along with mild memory loss (such as forgetting names, directions, or recent events), suicidal ideation, and impaired impulse control (such as unprovoked irritability with periods of violence). Id. at 4. The examiner also noted the Veteran's reported he has a poor appetite and has lost 30 pounds since his last exam, sleeps less than 4 hours per night, has racing thoughts, tension headaches, and has decreased interest in activities, poor motivation, isolation, and an absence of "joy." Id. at 4. Mental health treatment notes from East-Orange VA Medical Center dated from January 2016 through March 2019 consistently note the Veteran as having denied suicidal and homicidal ideations as well as denying auditory and visual hallucinations. See January 2016 East-Orange VA Medical Center at 12-48. Mental health treatment notes from East-Orange VA Medical Center, dated in March 2019 through February 2020 consistently noted the Veteran as having denied suicidal and homicidal ideations as well as denying auditory and visual hallucinations. See March 2019 East-Orange VA Medical Center at 1-141. In June 2020, the Veteran reported via video telehealth to a VA mental disorders (other than PTSD and eating disorders) DBQ, where the examiner diagnosed him with persistent depressive disorder (with persistent major depressive episode) and alcohol use disorder (in sustained remission). See June 2020 VA Mental disorders DBQ. The examiner noted the Veteran's symptoms to include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, 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), suicidal ideation, and impaired impulse control (such as unprovoked irritability with periods of violence), and neglect of personal appearance and hygiene. Id. at 5-6. The examiner opined the Veteran displayed impaired concentration and was verbally reactive to perceived threats. However, the examiner further opined the Veteran did not exhibit evidence of psychosis, mania, or disorientation. Id. at 6. The Veteran reported current employment as a "Patient Navigator" at an opiate overdose recovery program since July 2017. Id. at 4. Analysis Upon review of the Veteran's entire history, the Board concludes that the preponderance of the evidence is against a rating in excess of 70 percent at any time during the appeal period. Based on the aforementioned evidence, the Board finds that the Veteran's symptomatology is not more consistent with a 100 percent rating. Notably, "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" and "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or other of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013), Here, the Veteran's symptomatology includes depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, 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), suicidal ideation, and impaired impulse control (such as unprovoked irritability with periods of violence), mild memory loss (such as forgetting names, directions, or recent events), and neglect of personal appearance and hygiene. See February 2015 VA Mental disorders DBQ; September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. The foregoing will be addressed in more detail below. The Veteran has displayed symptoms of a depressed mood, anxiety, and panic attacks (that occur weekly or less often). See February 2015 VA Mental disorders DBQ; September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. Notably, the Veteran's depressed mood, anxiety, and panic attacks more approximate the finding of 70 percent rather than that of 100 percent. Specifically, the numerous VA DBQ's note the Veteran as manifesting symptoms of a depressed mood, anxiety, and panic attacks. However, the Veteran's mental health treatment records note him as reporting 'his medication beneficial" and would like to continue them as they provide "good control." See February 2015 Lyons VA Medical Center at 62; May 2015 Lyons VA Medical Center at 5. As such the Veteran's depressed mood, anxiety, and panic attacks more approximate the finding of 70 percent rather than that of 100 percent. The Veteran has displayed symptoms of a chronic sleep impairment, impaired judgment, and disturbances of motivation and mood. See September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. Specifically, the Veteran reported sleeping four hours or less per night. See September 2015 VA Mental disorders DBQ at 4. The Veteran has also reported difficulties staying asleep. See June 2020 VA Mental disorders DBQ at 1. Additionally, the veteran reported feeling down with decreased interest in activities, poor motivation, and isolation with an absence of joy. Id. at 4. However, the Veteran consistently denied hallucinations at his VA examinations and his treatment notes consistently find him denying the same. See September 2014 Lyons VA Medical Center at 8-11; February 2015 VA Mental disorders DBQ; February 2015 Lyons VA Medical Center at 59-68; May 2015 Lyons VA Medical Center at 2-10; September 2015 VA Mental disorders DBQ; January 2016 East-Orange VA Medical Center at 12-48; March 2019 East-Orange VA Medical Center at 1-141; June 2020 VA Mental disorders DBQ. As the Veteran has not displayed symptoms of total occupational and social impairment with gross impairments in thought processes or communication, his sleep impairment, impaired judgment, and disturbances of motivation and mood more approximate the finding of 70 percent rather than that of 100 percent. The Veteran has expressed symptoms of difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances (including work or a worklike setting). See February 2015 VA Mental disorders DBQ; September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. In February 2015, the Veteran reported having a girlfriend but, he reported "I pushed her away." See February 2015 VA Mental disorders DBQ at 3. During the same examination the Veteran reported starting and leaving two jobs since 2013. Id. at 3. At the same examination the Veteran reported having few friends or supporters other than his children. Id. at 3. In June 2020, during a VA examination, the Veteran reported that he is very distant with his children and has no relationship with his parents. See June 2020 VA Mental disorders DBQ at 4. However, during the same interview the Veteran reported talking with his children "when they call" and that his mother had texted him the prior night although he had yet to reply. Id. at 4. Lastly, the Veteran reported working full time at his last VA examination in June 2020. See June 2020 VA Mental disorders DBQ. Lastly, the Veteran reported working full time at his last VA examination in June 2020. See June 2020 VA Mental disorders DBQ. As the Veteran has not displayed symptoms of total occupational and social impairment with gross impairments in thought processes or communication, his sleep impairment, impaired judgment, and disturbances of motivation and mood more approximate the finding of 70 percent rather than that of 100 percent. As to the Veteran's suicidal ideations, the period under review is absent any such reports until the June 2020 VA examination report. See June 2020 VA Mental disorders DBQ. However, this does not equate to the 100 percent level as it was not considered persistent danger of hurting himself or others as it was only one incident and from the medical evidence there is no other incident of such occurring. Also, it was noted during the June 2020 examination, the Veteran denied considering a method, plan, or intent. He also endorsed being committed to staying alive. Id. at 2. Rather, it appears that this symptom is more consistent with the 70 percent, where one would endorse such ideations. The September 2015 and June 2020 examiners noted the Veteran displayed symptoms of impaired impulse control (such as unprovoked irritability with periods of violence). See September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. However, the Veteran consistently denied homicidal ideations at his VA examinations and his treatment notes consistently find him denying the same. See September 2014 Lyons VA Medical Center at 8-11; February 2015 VA Mental disorders DBQ; February 2015 Lyons VA Medical Center at 59-68; May 2015 Lyons VA Medical Center at 2-10; September 2015 VA Mental disorders DBQ; January 2016 East-Orange VA Medical Center at 12-48; March 2019 East-Orange VA Medical Center at 1-141; June 2020 VA Mental disorders DBQ. Again, the Veteran's impaired impulse control (such as unprovoked irritability with periods of violence) more approximate the finding of 70 percent rather than that of 100 percent. The September 2015 examiner noted mild memory loss (such as forgetting names, directions, or recent events). See September 2015 VA Mental disorders DBQ. Specifically, the examiner noted the Veteran's mood was irritable and depressed. However, the examiner noted the Veteran's impairments did not affect his perception or thought content, in fact it was noted his "thought processes were coherent, organized, and intact." Id. at 4. This does not equate to the 100 percent level as there is no evidence of memory loss for names of close relatives, own occupation, or own name. Rather, it appears that this symptom is more consistent with the 70 percent, where one would endorse such mild memory loss. The Veteran has been noted as displaying symptoms associated with neglect of personal appearance and hygiene. See September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. Specifically, the Veteran reported not bathing regularly "sometimes going weeks without showering." See June 2020 VA Mental disorders DBQ at 6. However, the Veteran reported having stable safe housing and the examiner noted he did not display evidence of psychosis, mania, or disorientation. Id. at 6. As such, the symptom is more consistent with the 70 percent, where one would endorse neglect of personal appearance and hygiene. As such, to warrant an increased rating, the evidence must show that the Veteran's symptoms more nearly approximate a rating of 100 percent at some point during the appeal period. See 38 C.F.R. § 4.7. A 100 percent rating is assigned when there is total occupational and social impairment due to 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 (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. Specifically, the June 2020 VA examiner opined the Veteran did not exhibit evidence of psychosis, mania, or disorientation. See June 2020 VA Mental disorders DBQ at 6. Additionally, the Veteran reported current employment as a "Patient Navigator" at an opiate overdose recovery program since July 2017. Id. at 4. The claims file also contains the VA mental health treatment records dated throughout the pendency of this appeal. The treatment records are reflective of the symptoms already discussed concerning the severity of the Veteran's persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder in his VA examination reports. However, these records do not contain any indication that the Veteran suffers from more severe or different symptoms than those noted above in the examination reports. See September 2014 Lyons VA Medical Center at 8-11; February 2015 Lyons VA Medical Center at 59-68; May 2015 Lyons VA Medical Center at 2-10; January 2016 East-Orange VA Medical Center at 12-48; March 2019 East-Orange VA Medical Center at 1-141. The Board has not overlooked the Veteran's lay statements found in the record. See December 2020 Informal Conference Worksheet; October 2014 VA Form 21-4138 Statement in Support of Claim. In this regard, the Veteran is credible to report on what he has seen and how he acts and feels. The Veteran is also certainly competent to report how he believes his persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder has affected his life, including describing his symptoms. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009). However, the Board finds more competent and credible the medical opinions provided by the VA examiners as discussed above, in rendering a decision as to the severity of the Veteran's persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder based on the totality of the evidence, and the observable symptoms as demonstrated in clinical treatment notes and his several VA examinations conducted throughout the appeal period, which, as the Board notes, does consider his lay statements. Following a review of the lay and medical evidence, the Board concludes that the Veteran's persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder is productive of the currently assigned criteria for a 70 percent rating. In reaching this determination, the Board finds his persistent depressive disorder with persistent major depressive episode and history of alcohol use disorder has been manifested by occupational and social impairment with deficiencies in most areas due to depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgment, 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), suicidal ideation, and impaired impulse control (such as unprovoked irritability with periods of violence), mild memory loss (such as forgetting names, directions, or recent events), and neglect of personal appearance and hygiene. These symptoms have been consistently reported by the Veteran throughout the pendency of his appeal. See February 2015 VA Mental disorders DBQ; September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. The Board finds that the preponderance of the evidence is against an evaluation in excess of 70 percent since the symptoms or the effects of the symptoms set out for these levels of impairment are absent from the record during the appeal period. The evidence does not show that the Veteran has total occupational and social impairment. See September 2015 VA Mental disorders DBQ; June 2020 VA Mental disorders DBQ. The Veteran has never attested to suffering from gross impairment in thought processes or communication, grossly inappropriate behavior, disorientation to time or place, persistent danger of hurting self or others, or suffering from memory loss for names of close relatives, own occupation, or own name. In fact, to the contrary, the record is entirely devoid of these symptoms as is required for the higher 100 percent ratings. See again September 2014 Lyons VA Medical Center at 8-11; February 2015 VA Mental disorders DBQ; February 2015 Lyons VA Medical Center at 59-68; May 2015 Lyons VA Medical Center at 2-10; September 2015 VA Mental disorders DBQ; January 2016 East-Orange VA Medical Center at 12-48; March 2019 East-Orange VA Medical Center at 1-141; June 2020 VA Mental disorders DBQ. As a preponderance of the evidence is against the award of an increased rating in excess of 70 percent, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David B. Scheirich, 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.