Citation Nr: 21041506 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 16-09 522 DATE: July 9, 2021 ORDER An initial rating of 70 percent, but no higher, for major depressive disorder with anxiety is granted. FINDING OF FACT Throughout the period on appeal, the Veteran's major depressive disorder with anxiety manifested through occupational and social impairment, with deficiencies in most areas, such as family relations, judgment, thinking or mood, due to such symptoms as suicidal ideation. CONCLUSION OF LAW The criteria for an initial rating of 70 percent, but no higher, for major depressive disorder with anxiety are met. 38 U.S.C. § 1155; 38 C.F.R. § 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1991 to August 1991, and from January 2008 to February 2009, with additional service in the Reserves. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). An April 2020 Board decision denied a rating in excess of 30 percent for major depressive disorder with anxiety. The Veteran appealed the Board's decision to the United States Court for Veterans Claims (CAVC). In a March 2021 Joint Motion for Partial Remand (JMPR), CAVC remanded the Board's decision and the parties found the Board did not provide an adequate statement of reasons or bases. Specifically, the April 2020 Board decision did not consider a July 2017 medical opinion from Dr. Morgan. Additionally, the Board decision insufficiently considered the actual effects of the Veteran's suicidal ideation on her occupational and social situation to determine whether a rating in excess of 30 percent is warranted for depressive disorder. 03/08/2021, CAVC Decision. Increased Rating 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 percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Entitlement to a rating in excess of 30 percent for major depressive disorder with anxiety. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The United States Court of Appeals for Veterans Claims (Court) has observed that the listed symptoms are examples of the type and degree of the manifestations of a mental disability required for a given disability rating, and that "the presence of all, most, or even some, of the enumerated symptoms" is not required to support a disability rating. Mauerhan, 16 Vet. App. at 442. Accordingly, it is not sufficient for the Board to simply match the symptoms listed in the rating criteria against those exhibited by a veteran. Rather, "VA must engage in a holistic analysis" of the severity, frequency, and duration of the signs and symptoms of the veteran's mental disorder, determine the level of occupational and social impairment caused by those signs and symptoms, and assign an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula, in pertinent part, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent is warranted if the Veteran experiences 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. 38 C.F.R. § 4.130. A 70 percent is warranted when the Veteran experiences 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 work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. 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 self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name. 38 C.F.R. § 4.130. 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). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). An October 2017 rating decision assigned an initial rating of 30 percent for major depressive disorder with anxiety, effective September 17, 2015. As noted above, in order to warrant a higher rating, the Veteran's disability would have to be manifested by at least occupational and social impairment with reduced reliability and productivity. The VA treatment records reveal that the Veteran has reported transient suicidal ideation without plan or intent on numerous occasions between 2014 and 2018. 07/05/2018, CAPRI, pages 213, 286 & 291; 01/29/2021, CAPRI, page 200; 11/10/2014, Medical Treatment Record Government Facility. A January 2016 VA examination noted a diagnosis of unspecified depressive disorder. The examiner opined that the Veteran has occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran's symptoms were noted to include depressed mood, anxiety, and chronic sleep impairment. The Veteran denied suicidal ideation at that time. The Veteran endorsed hallucinations, such as seeing someone walk by who is not really there. The examiner noted that the Veteran's relationship with her children is not good due to her depression, and that she is very distant towards her children. 01/16/2016, C&P Exam. In a May 2017 statement, the Veteran's spouse described the Veteran's daily struggles due to her physical pain and related mental health condition. He indicated that the Veteran has crying spells and says she feels worthless. 06/23/2017, VA 21-4138 Statement. A July 2017 medical opinion was provided by a private clinician, who diagnosed the Veteran with major depressive disorder. The clinician opined that the Veteran has occupational and social impairment with deficiencies in most areas. The Veteran's symptoms were noted to include: depressed mood; diminished interest; loss of appetite; insomnia; psychomotor retardation; fatigue and loss of energy; diminished concentration; recurrent thoughts of death; and, suicidal ideation without intent or plan. The clinician indicated that the Veteran's symptoms have persisted in severity since 2015. The Veteran further described her passive suicidal ideation and indicated that, although she does not intend to act on her suicidal ideation, she regularly contemplates how challenging it is to navigate life amidst her physical and emotional symptoms, and that death may bring some relief from her suffering. 09/19/2017, Medical Treatment Record Non-Government Facility. After review of the relevant competent and probative lay and medical evidence, the Board finds that a rating of 70 percent, but no higher, is warranted throughout the period on appeal. The Board acknowledges the January 2016 VA examination found the Veteran to have occupational and social impairment with occasional decrease in work efficiency. The Board places probative weight on the January 2020 VA examination, insofar as the examiner describes the Veteran's symptoms that severely impair his social and occupational functioning with deficiencies in most areas. Specifically, the Veteran is unable to maintain an effective relationship with her young children and her depression causes her to become distant from her family. Additionally, the Board also places probative weight on the July 2017 private medical opinion, which noted that the Veteran has had passive suicidal ideation and recurrent thoughts of death. The private clinician further described how the Veteran's passive suicidal ideation interferes her occupational and social functioning, which is also corroborated by the notations in the VA treatment records as referenced above. The Board finds that the next-higher rating of 100 percent is not warranted as the competent evidence does not reflect total social and occupational impairment. The January 2016 VA examination reflects that is married and maintains contact with some family members. Additionally, the Veteran did endorse suicidal ideation, but denied plan or intent to harm himself and otherwise not in persistent danger of harming herself or others. Such is contemplated and compensated by the current 70 percent rating. Although the Veteran has had persistent difficulty in maintain an effective relationship with her children, the Board finds that such social function, though limited, does not reflect total social impairment. See Total, Merriam-Webster, at https://www.merriam-webster.com/dictionary/total (defining "total" as, among other things, "absolute, utter"). As such, the Board finds that when viewed against other evidence of record, to include the treatment records and statements, that the Veteran's overall disability picture is most nearly approximated by the 70 percent evaluation, and not a 100 percent rating, throughout the period on appeal. 38 C.F.R. §§ 4.3, 4.7. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board David Han 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.