Citation Nr: 21040000 Decision Date: 07/02/21 Archive Date: 07/02/21 DOCKET NO. 16-46 174 DATE: July 2, 2021 ORDER Entitlement to a disability rating higher than 50 percent for Persistent Depressive Disorder (PDD) (previously rated as an HIV related illness with chronic dysthymia) is denied. FINDING OF FACT The severity, frequency, and duration of the Veteran's PDD symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a disability rating in excess of 50 percent for PDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1991 through July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a U.S. Department of Veterans Affairs (VA) Regional Office (RO). In November 2018 the Board remanded the claim for additional development. The case is again before the Board for appellate review. Increased Rating The Veteran claims entitlement to a higher disability rating for his service-connected psychiatric disability. Relevant legal authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned 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 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; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; 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. A 100 percent rating 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 or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130. The Board notes that considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation must be based on all evidence of record that bears on 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(a). Further, rating evaluations 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). Although a Veteran's symptomatology is the primary consideration in assessing their disability rating based on a mental disorder, the regulation also requires an ultimate factual conclusion as to the Veteran's level of impairment in "most areas" for that rating. Id.; 38 C.F.R. § 4.130. Evidence and analysis The Veteran contends that his service connected PDD is more severe than is currently rated. The Veteran's PDD (dysthymia) has been evaluated as 50 percent disabling since November 2000. The evidence in this matter consists of lay assertions, VA treatment records, and VA examination reports dated in August 2011 and September 2019. This evidence indicates that an increased rating is unwarranted. The August 2011 VA examination showed the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner specified that the Veteran's "[w]ork functioning is not impaired by his mental health condition." The examiner specified that the Veteran's depression was related to his HIV status and that it negatively impacted his ability to develop social and romantic relationships. The Veteran reported attempts to develop romantic relationships but experienced successive rejections due to his HIV status and overworks himself to cope. The examiner found the Veteran had a depressed mood, anxiety and chronic sleep impairment. The examiner also found difficulty in establishing and maintaining effective work and social relationships. A July 2015 neuropsychological evaluation was performed and found that the assessment results were valid and interpretable. The Veteran was found to be of average to above average intellectual ability, was within the expected range in expressive and receptive language; visuospatial orientation/perception; aspects of executive functioning; auditory attention and working memory; and nonverbal recognition memory. The Veteran was observed to have relative cognitive deficits in verbal and nonverbal learning and recall; psychomotor processing speed; aspects of executive function; and visual-spatial construction. He underperformed on timed tasks which suggested slowed processing speed of novel information and displayed difficulty on tasks more demanding in organization and effortful processing. The Veteran reported mild depression with symptoms of sadness, discouragement, loss of interest and pleasure, difficulty making decisions, low energy and fatigue, sleep disturbance, irritability, concentration difficulty and a loss of interest in sex. The evaluation did "not suggest the presence of global cognitive impairment, though relative weaknesses/deficits were observed in several areas". The September 2019 VA examination showed the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner documented that the Veteran received individual psychotherapy from January to August 2010 which showed the Veteran improved in depressive symptoms. His support system included his girlfriend, counselor, psychiatrist, sister, and a couple of coworkers. The Veteran had achieved a Master's in Quality Systems Management, had all good performance reviews at work but after the first 8 years his position was eliminated and had worked as a contracting officer since. He was turned down for a promotion and chose to take a job with another agency because of it. The Veteran denied suicidal or homicidal ideation, denied psychosis and hospitalizations. The examiner noted symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships. The medical evidence indicates symptoms that are contemplated by the 50 percent rating. Further, while the various VA examiners found that the Veteran would experience occasional occupational difficulties, the Veteran did not report that he was unemployed because of his PDD. Indeed, the November 2019 VA report indicates that he is employed full-time in procurement for the government. The report indicates that the Veteran has been at his present place of employment for over 10 years and reports enjoying the work though his schedule is demanding and he believes he overworks himself to not focus on his lack of personal life. Nevertheless, the evidence also indicates that the Veteran has been in a long-term relationship recently. Based on the foregoing evidence, an increase in rating is unwarranted. The preponderance of the evidence is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. C. J. McEntee Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kelsey Love, 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.