Citation Nr: 21042799 Decision Date: 07/14/21 Archive Date: 07/13/21 DOCKET NO. 15-02 067 DATE: July 14, 2021 ORDER Prior to November 4, 2014, a rating of 50 percent, but no higher, for major depressive disorder associated with lumbar degenerative disc disease is granted. FINDING OF FACT Prior to November 4, 2014, the Veteran's major depressive disorder has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. CONCLUSION OF LAW Prior to November 4, 2014, a rating of 50 percent, but no higher, is warranted for major depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1976 to March 1979. This case was initially before the Board in January 2019, when the Board denied an initial evaluation in excess of 30 percent for major depressive disorder, and a rating in excess of 50 percent for major depressive disorder from November 4, 2014. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an October 2019 Joint Motion for Partial Remand (JMPR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate, in part, the January 2019 decision to the extent that it denied a rating in excess of 30 percent for the Veteran's major depressive disorder for the period prior to November 4, 2014. The Veteran abandoned his appeal of the Board's denial of a rating higher than 50 percent for the period beginning November 4, 2014. In a June 2020 decision, the Board once again denied an increased rating for the Veteran's major depressive disorder prior to November 4, 2014. Thereafter, the Veteran once again appealed to the Court. In a March 2021 JMPR, the Secretary of VA and the Veteran (the parties) moved the Court to vacate, in part, the June 2020 decision to the extent that it denied a rating in excess of 30 percent for the Veteran's major depressive disorder for the period prior to November 4, 2014. There are no other issues remaining on appeal before the Board at this time. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. 1. Entitlement to an initial rating in excess of 30 percent for major depressive disorder associated with lumbar degenerative disc disease prior to November 4, 2014. The Veteran claims that his service-connected major depressive disorder is more severe than his 30 percent rating currently assigned prior to November 4, 2014. Evaluations for various psychiatric disabilities are assigned pursuant to 38 C.F.R. § 4.130. Under the general rating formula for mental disorders, a rating of 30 percent is assigned when there is occupational and social impairment with an 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 rating of 50 percent 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; difficulty in establishing and maintaining effective work and social relationships. A rating of 70 percent is assigned 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; 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 inability to establish and maintain effective relationships. A 100 percent schedular evaluation contemplates 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. Id. The specified factors for each incremental psychiatric rating are not requirements for a particular rating but are examples providing guidance as to the type and degree of severity, or their effects on social and work situations. Thus, the analysis should not be limited solely to whether the symptoms listed in the rating scheme are exhibited; rather, consideration must be given to factors outside the specific rating criteria in determining the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The classification outlined in the portion of VA's Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5). 38 C.F.R. § 4.130. In assessing the evidence of record, it is important to note that the Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996). Effective August 4, 2014, the DSM-IV was superseded by a new fifth edition that significantly changed diagnostic metrics for mental illnesses. In pertinent part, the DSM-5 eliminated the GAF scores used in the DSM-IV. It was recommended that the GAF be dropped from DSM-5 for several reasons, including its lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. Historically, a May 2015 rating decision increased the rating for the Veteran's major depressive disorder from 30 percent to 50 percent, effective November 4, 2014, the date of the VA examination showing a worsening of his psychiatric disability. Remaining on appeal is the time period prior to November 4, 2014. For the reasons below, the Board finds that a 50 percent rating, but no higher, is warranted for the entire period on appeal prior to November 4, 2014. Turning to the merits of the claim, an April 2010 private treatment record noted that the Veteran had separated from his wife and was joining a divorce recovery group. The Veteran underwent a VA examination in April 2011. The Veteran admitted to a depressed mood more days than not for most of the day. He reported the occasional thought that he would be better off dead than alive, with no intent. The Veteran reported that he was seeing a local psychiatrist and continued to be prescribed antidepressants. The Veteran reported that he had stayed home three straight days in the previous month due to feeling depressed and unmotivated. The VA examiner noted that the Veteran was married to his wife for 34 years. An examination at that time revealed that the Veteran was dressed casually, had good grooming and hygiene. His thought processes were noted to be clear, logical, linear, coherent and goal directed. There were no delusions or hallucinations noted and none reported. His mood was described as depressed and anxious. He admitted to passive suicidal thoughts, such as described above, but denied homicidal ideation. He was oriented in all spheres. Remote and recent memory appeared to be largely intact. His social judgment and insight were described as good. The examiner noted that the Veteran's chronic pain and depression make him irritable, particularly at work, and this is likely to sometimes negatively impact his occupational effectiveness. It was noted that the Veteran is largely able to engage in all activities of daily living independently and without assistance. His major depression was categorized as being moderate and recurrent. It was noted that there were intermittent periods of inability to perform occupational or social tasks due to mental disorder signs and symptoms; critically, this was emphasized to only be "intermittent." Thus, it is most consistent with a 50 percent disability rating, not a higher 70 percent rating. In a November 2013 VA treatment record the Veteran reported little interest or pleasure in doing things more than half the days and feeling down, depressed or hopeless nearly every day. In an October 2014 VA treatment record it was noted that the Veteran was casually dressed, well-groomed and easily engageable. His speech was noted to be of normal rate, volume, tone, and rhythm. The Veteran denied suicidal ideation and homicidal ideation. In another October 2014 VA treatment record he reported irritability, isolation, fatigue, and depression. The Veteran reported struggling being around others, that he feels irritable at work and has no desire to do things. He maintained that despite the medication, he feels no difference in his mood and often feels tired. He denied experiencing suicidal or homicidal ideations. The Veteran underwent a VA examination in November 2014. This examination was used by the RO to grant an increased rating to 50 percent as of the date of the examination. The Veteran reported that he continued to experience symptoms of depression including lack of motivation, less interest in once preferred activities, self-isolative preferences, irritability, poor sleep, crying spells and low self-esteem. The examiner noted that the Veteran's occupational and social impairment was consistent with reduced reliability and productivity. The VA examiner noted that the Veteran had depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. It was noted that his symptoms of depression may lead to excessive absenteeism, tardiness, and the need to leave work early due to depressed mood, low energy, and low motivation. The examiner also noted that his personality disorder traits are also likely to negatively impact his interpersonal and occupational functioning in any type of work environment. For VA rating purposes the Veteran's symptoms included criteria which warrant the assignment of a rating ranging from 50 to 70 percent. However, when considering all of the evidence as a whole, the Board finds that the evidence is most consistent with a 50 percent disability rating. Resolving reasonable doubt in the Veteran's favor, the Board finds that the record reflects that Veteran is entitled to a disability rating of 50 percent for his major depressive disorder for the entire period on appeal, prior to November 4, 2014. The Board can determine no distinction in the Veteran's psychiatric symptoms prior to November 4, 2014, the date of the VA examination showing a worsening of his major depressive disorder. Accordingly, the Board finds that prior to November 4, 2014, a rating of 50 percent, but no higher, is warranted for major depressive disorder. The Board finds that a higher evaluation of 70 percent is not warranted. In this case, there was no evidence of such symptoms as 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; or neglect of personal appearance and hygiene. The Board has considered that the record does show a notation of the Veteran expressing he may be better off dead, having feelings of hopelessness, and issues at work because of his psychiatric disability. The Board fully recognizes that the listed symptoms for a 70 percent schedular rating are not all encompassing, and their presence is not necessarily determinative. However, the Veteran's symptoms must cause the occupational and social impairment in the referenced areas. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The evidence as a whole, prior to November 4, 2014 reflects symptomatology most consistent with a 50 percent rating. After weighing all of the evidence, the Board finds that the evidence is most consistent with the 50 percent rating throughout the record, prior to November 4, 2014. It is important for the Veteran to understand that a disability evaluation of 50 percent recognizes that his symptoms necessarily will cause impairment and that this fact is not in dispute. The Veteran's statements made during the VA examinations and treatment records in many respects support a 50 percent evaluation, not a 70 percent finding. The critical question in this case, however, is whether the problems the Veteran has cited meet an even higher, 70 percent, level under the rating criteria. For reasons cited above, the Board concludes that they do not, for any part of the rating period prior to November 4, 2014. For the foregoing reasons, the Board finds that a rating of 50 percent, but no higher, is warranted for the Veteran's major depressive disorder for the period prior to November 4, 2014. To this extent, the claim is granted. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.