Citation Nr: 21042198 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 17-62 099 DATE: July 12, 2021 ORDER Entitlement to an initial rating of 70 percent, but no higher, from the June 25, 2015 effective date of service connection through November 13, 2016, for traumatic brain injury (TBI) with major depressive disorder (MDD) and posttraumatic stress disorder (PTSD) (hereinafter "TBI with MDD"), is granted, subject to the regulations governing the payment of monetary awards. FINDING OF FACT From the June 25, 2015 effective date of service connection through November 13, 2016, the Veteran's TBI with MDD manifested in symptoms causing occupational and social impairment with deficiencies in most areas, but not in total occupational and social impairment. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, but no higher, from June 25, 2015 through November 13, 2016, for TBI with 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 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1981 to February 1987. This matter is before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision which granted service connection with an initial rating of 0 percent, from June 25, 2015, for TBI with MDD. The initial rating was increased to 30 percent in a November 2017 rating decision. An informal hearing conference with a Decision Review Officer (DRO) was conducted in August 2017 in lieu of a formal hearing and a report of that conference has been associated with the Veteran's claims file. In November 2017, the agency of original jurisdiction (AOJ) assigned a 30 percent disability rating, from June 25, 2015 through August 23, 2017, and a 70 percent rating, from August 24, 2017, for TBI with MDD. In a May 2019 decision, the Board denied entitlement to an initial rating greater than 30 percent for TBI with MDD prior to November 14, 2016, and awarded a 70 percent rating for TBI with MDD from November 14, 2016. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (the Court). In December 2020, the Court entered a memorandum decision vacating and remanding that portion of the Board's May 2019 decision that denied entitlement to an initial rating higher than 30 percent for TBI with MDD prior to November 14, 2016. Entitlement to an initial rating higher than 30 percent for TBI with MDD, prior to November 14, 2016 In general, disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by a given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's TBI with MDD is currently rated under 38 C.F.R. § 4.130, Diagnostic Code 9411, for PTSD, and the General Rating Formula for Mental Disorders, which provides the following criteria: A 30 percent rating is to be assigned in cases of 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). 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/or 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, 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); and/or 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 self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. The list of symptoms in the General Rating Formula for Mental Disorders is not intended to constitute an exhaustive list, but rather provides examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). Furthermore, 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 on the basis of social impairment. 38 C.F.R. § 4.126. During the period on appeal, the Veteran underwent a VA examination for mental disorders in November 2015. The Veteran reported symptoms of depression, including self-isolative preferences, mood swings, irritability, and occasional crying spells. He also reported symptoms of anxiety, including excessive worry and anxiety with difficulty managing the worry, restlessness, poor concentration (his mind going blank), muscle tension, and poor sleep. The examiner noted that the Veteran was working full-time as a real estate broker since 2005. The examiner listed symptoms including depressed mood, anxiety, and chronic sleep impairment and stated that the Veteran's impairment resulted in occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to depressive disorder signs and symptoms, but generally functioning satisfactorily (routine behavior, self-care, and conversation normal). The Veteran submitted a statement in November 2015 in which he reported that he had insomnia and nightmares and was hypervigilant at all times. He also reported suspiciousness, nightmares, problems with loud noises, loss of interest in activities which previously brought enjoyment, and he reported that he was very angry and "ready to explode." Importantly, the Veteran also said that he had frequent thoughts of suicide and that he had a plan. As noted above, disability ratings for TBI with MDD are found by using the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. The evidence shows that the Veteran experienced some symptomatology consistent with a 30 percent rating, including depressed mood, anxiety, suspiciousness, mild memory loss, and chronic sleep impairment. The Veteran's statements also show at least one symptom consistent with a 70 percent rating - suicidal ideation. The record shows that the frequency, severity, and duration of these symptoms caused the Veteran occupational and social impairment with deficiencies in most areas, as the Veteran reported that he was jumpy and never at ease, had chronic sleep impairment, and had suicidal ideation. Therefore, the frequency, duration, and severity of the Veteran's symptoms are consistent with the functioning contemplated by a 70 percent rating during the entire period from the June 25, 2015 effective date of service connection through November 13, 2016. However, the evidence does not reflect that the Veteran experienced total occupational and social impairment during the period prior to November 14, 2016, which is required for a 100 percent rating. In this regard, the Veteran reported that he worked full-time as a real estate broker. Although there is evidence that the Veteran had anger, depression, anxiety and other symptoms during this period, there is no evidence that the Veteran was unable to work. Thus, the evidence does not more nearly approximate the frequency, duration, and severity of total occupational impairment. The Veteran reported having difficulties when in public places and difficulty controlling his anger, but the evidence does not indicate that the Veteran was completely isolated and totally unable to interact with other people. The evidence reflects suicidal ideation which is reflected in the 70 percent rating assigned herein. Persistent danger of hurting oneself or others is a symptom listed in the criteria for a 100 percent rating. Here, however, there has been no persistent danger of hurting oneself or others. Thus, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. Also, suicidal ideation is contemplated by a 70 percent rating. Moreover, the evidence does not show homicidal ideation or acts of violence which would render the Veteran a persistent danger to himself or others around him. There was also no evidence of gross impairment of thought process or communication, persistent delusions or hallucinations, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or any other symptoms of similar frequency, severity, or duration. The record also does not demonstrate any grossly inappropriate behavior during the period on appeal that would be consistent with a higher rating. There is no evidence of auditory or visual hallucinations or delusions during this period. Hence, the frequency, duration, and severity of his symptoms do not more nearly approximate total social impairment. Thus, when considering the frequency, severity, and duration of the Veteran's occupational and social impairment, his TBI with MDD caused him to have deficiencies in most areas, but not total occupational and social impairment. The Board has also considered whether a staged rating is appropriate. However, the above evidence reflects that the Veteran's symptomatology was stable throughout the period on appeal and was consistent with no more than a 70 percent rating during the entire claim period prior to November 14, 2016. Therefore, a staged rating is not warranted in this case. As a final point, the Board notes that in conjunction with the appeal for a higher initial rating for TBI with MDD prior to November 14, 2016, neither the Veteran nor his representative have raised any other related issues, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Brian J. Elwood Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Dean, 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.