Citation Nr: 21031581 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 20-26 588 DATE: May 24, 2021 ORDER Entitlement to an initial disability rating of 50 percent, but no higher, for service-connected unspecified depressive disorder with anxious distress is granted. FINDING OF FACT The most probative evidence of record demonstrates that the Veteran's service-connected unspecified depressive disorder with anxious distress manifested in a level of severity more closely approximating the disability picture contemplated by a 50 percent disability evaluation, due to symptoms such as flattened affect, circumlocutory speech, impairment of short- and long-term memory, impaired abstract thinking, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating of 50 percent, but no higher, for service-connected unspecified depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.126, 4.130, Diagnostic Code 9435. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1998 to July 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). Notably, although the Veteran requested a hearing before the Board in his May 2020 substantive appeal, he withdrew his hearing request, through his attorney, in correspondence with VA dated October 15, 2020. Thus, his hearing request is deemed withdrawn. This appeal has been advanced on the Board's docket in accordance with 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). The Board notes that it has reviewed all the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence in the record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss every piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, with respect to the Veteran's claim. Entitlement to an initial disability rating in excess of 40 percent for service-connected unspecified depressive disorder with anxious distress Disability evaluations are determined by the application of 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 discerned, the average impairment in earning capacity resulting from diseases and injuries incurred in or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service-connected disability exhibited diverse symptoms satisfying the criteria for different ratings during the course of the appeal, staged ratings are to be considered. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's depressive disorder is rated under Diagnostic Code 9435. Psychiatric disorders are rated under the General Rating Formula for Mental Disorders, which provides, in pertinent part, that mental disorders are to be rated under 38 C.F.R. § 4.130 as follows: 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; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, and thinking and/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); and an inability to establish and maintain effective relationships. A 100 percent rating is warranted for 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 oneself or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or name. Evaluation of a mental disorder requires consideration of the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. Evaluations will be assigned based on all evidence of record that impacts occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. When determining the appropriate disability evaluation to assign, the Board's primary considerations are a veteran's symptoms and how those symptoms impact the veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the veteran's impairment must be "due to" those symptoms and that a veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt that may remain is to be resolved in favor of the veteran. 38 C.F.R. § 4.3. Here, the Veteran asserts that his service-connected depressive disorder with anxious distress warrants an initial disability rating in excess of the currently-assigned 40 percent rating. See, e.g., VA Form 9, Appeal to Board of Veterans' Appeals, dated May 29, 2020. Lay statements from the Veteran's former wife convey that the Veteran experiences night terrors that cause him to react violently during his sleep, as well as irritability, disinterest in activities he previously enjoyed, avoidance of crowds and topics related to his military experience, self-medicating by consumption of alcohol, and memory loss. See lay statements from A.B. received by VA on December 11, 2012 and September 16, 2016. The Veteran's representative furnished a statement demonstrating that the severity of the Veteran's service-connected psychiatric disorder causes social and occupational impairment warranting a disability evaluation higher than 40 percent. See document labelled "Third Party Correspondence," dated October 15, 2020. Reported symptomatology includes irritability, difficultly establishing and/or maintaining effective relationships, severe sleep impairment and/or insomnia, memory loss, difficulty concentrating, and feelings of worthlessness and depression. Turning to the medical evidence of record pertinent to the period on appeal, the Veteran was first afforded a VA psychiatric examination in June 2015. At that time, a psychologist diagnosed the Veteran with unspecified depressive disorder with anxious distress, characterized by symptomatology including depressed mood, anxiety, and chronic sleep impairment. See VA examination dated June 29, 2015. The psychologist opined that the disorder resulted in occupation 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 provided VA with a mental health evaluation from a private psychologist, J.A., based on a July 2017 examination. The psychologist chronicled the Veteran's personal, military, and medical histories, and determined that the Veteran's psychiatric disorder presented as more severe than suggested in the previous VA examination. See medical report and opinion dated July 20, 2017. Specifically, J.A. concluded that the disorder's severity was of a moderate to severe nature. Due to the comprehensive account of the Veteran's relevant medical history and the extent of his psychiatric symptoms, the Board finds the July 2017 medical opinion to be of great probative value. The Veteran next underwent a VA examination for his psychiatric disorder in September 2017, at which time a clinician concluded that the Veteran's unspecified depressive disorder with anxious distress caused occupational and social impairment with reduced reliability and productivity. See VA examination dated September 1, 2017. The disorder was reported to manifest in depressed mood, anxiety, panic attacks that occur weekly or less often, mild memory loss (such as forgetting names, directions, or recent events), disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The clinician also reported that the Veteran experiences other symptoms attributable to the disorder, such as frustration, difficulty concentrating, and disinterest in previously-enjoyed activities. The clinician determined that the Veteran's service-connected migraine disorder at least as likely as not permanently aggravated the diagnosed unspecified depressive disorder. In so finding, the physician noted that the Veteran has a longstanding history of depression, including an in-service hospitalization in the late 1990s, prescriptions for multiple psychotropic medications in the following years, and another period of inpatient treatment in 2015. The examiner opined that the baseline severity of the Veteran's psychiatric disorder, prior to aggravation by his migraine disorder, was mild, whereas the severity at the time of examination was noted to be mild to moderate. In September 2017, the RO awarded the Veteran service connection for unspecified depressive disorder with anxious distress. See rating decision dated September 6, 2017. The RO found that the severity of the disability more closely approximated the disability picture contemplated by a 50 percent evaluation but deducted 10 percent from the disability rating based on the September 2017 clinician's finding that the baseline of the disorder prior to aggravation was mild. The Veteran underwent another VA psychiatric examination in June 2020. At that time, a psychiatrist opined that the Veteran's service-connected depressive disorder resulted in occupational and social impairment with reduced reliability and productivity. See VA examination dated June 24, 2020. Reported symptomatology includes depressed mood, anxiety, panic attacks occurring weekly or less often, chronic sleep impairment, mild memory loss (such as forgetting names, directions, or recent events), circumlocutory speech, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Additionally, medical records reflect that the Veteran regularly receives treatment for his service-connected depressive disorder. Mental health notes from September 2019 and October 2020 indicate that the Veteran's symptomatology has gradually worsened over the aforementioned time period, due to a "very complicated psychosocial situation to mainly include divorce and recent sexual trauma." See medical treatment records dated September 18, 2019. However, the context in which such an exacerbation was observed was reportedly the collective effect of such circumstances on all psychiatric disorders, including posttraumatic stress disorder (PTSD) and bipolar disorder, for which the Veteran is not service connected. As the examiner who documented the increase in severity did not distinguish whether such increase was due to the Veteran's service-connected depressive disorder with anxiety distress, the Board cannot use the evidence to support the assignment of a higher disability rating. See Mittleider v. West, 11 Vet. App. 181 (1998) (holding that the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so). Moreover, the evidence contained in such treatment records would not merit the assignment of a disability rating in excess of 50 percent. In light of the foregoing, the Board finds that the most probative lay and medical evidence of record demonstrates that the severity of the Veteran's service-connected depressive disorder more closely approximates the disability picture of a 50 percent evaluation. Regarding the 10 percent deduction based on the determination that the baseline severity of the Veteran's depressive disorder was mild, the Board notes that the evidence of record does not support such a deduction from the assigned disability rating. The September 2017 examiner provided only a speculative basis for the assertion that the Veteran's psychiatric disorder was of mild severity prior to aggravation by his service-connected migraine disorder. Therefore, the record demonstrates that the Veteran's depressive disorder warrants a 50 percent disability evaluation. A disability rating of 70 percent is not warranted because the lay and medical evidence does not indicate that the Veteran's depressive disorder results in occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking and/or mood, due to symptoms such as: suicidal ideation; obsessive rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; spatial disorientation; neglect of personal appearance and hygiene; and an inability to establish and maintain effective relationships. Accordingly, a disability rating of 50 percent, but no higher, for service-connected unspecified depressive disorder with anxious distress is warranted. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Tolbert, 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.