Citation Nr: 22013501 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 16-35 806 DATE: March 9, 2022 ORDER Entitlement to a disability rating in excess of 70 percent for major depressive disorder is denied. A separate disability rating for generalized anxiety disorder is denied. FINDINGS OF FACT 1. The evidence of record is persuasively against a finding that the Veteran's service-connected major depressive disorder symptoms manifest in total occupational and social impairment. 2. A separate, compensable disability evaluation for anxiety disorder would improperly rate the same disability symptoms under various diagnoses under the General Rating Formula for Mental Disorders. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for major depressive disorder with anxiety have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to a separate compensable rating for anxiety disorder are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.30; Esteban v. Brown, 6 Vet. App. 259 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1989 to March 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA). By way of history, the Veteran filed a notice of disagreement in April 2016, arguing that he is entitled to a disability rating in excess of 70 percent for his major depressive disorder. He subsequently appealed this claim to the Board. In an April 2019 Board decision, the Board denied the Veteran's claim for entitlement to a disability rating in excess of 70 percent for his service-connected major depressive disorder. The Veteran then appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In February 2020, VA and the Veteran filed a Joint Motion for Partial Remand (JMPR), asking the Court to vacate and remand the April 2019 Board decision for readjudication under the terms of the agreement. The Court granted the JMPR in a February 2020 order. The appeal was remanded to the Board. As a result, the Board remanded the appeal to the agency of original jurisdiction (AOJ) in July 2020, for evidentiary development consistent with the discussion in the February 2020 JMPR. Such evidentiary development was undertaken in the form of VA examinations and addendum opinions. The claim was then returned to the Board; however, in July 2021, additional remand was required, as the July 2020 remand directives were not substantially complied with in violation of Stegall v. West, 11 Vet. App. 268, 271 (1998). The appeal returned to the Board and in November 2021, the Board remanded the claim again for issuance of a supplemental statement of the case (SSOC) to consider evidence newly added to the record. A SSOC was issued in December 2021, and the Veteran's claim was presently returned. Disability Ratings 1. Entitlement to a disability rating in excess of 70 percent for major depressive disorder with anxiety is denied. The Veteran contends he is entitled to a disability rating greater than 70 percent for his service-connected major depressive disorder. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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 evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. The Veteran's service-connected major depressive disorder with anxiety is rated as 70 percent disabling at all times from July 19, 2005, under VA's General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under the formula, a 70 percent evaluation 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; intermittently illogical, obscure, or irrelevant speech; 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. Id. A 100 percent evaluation is assignable where 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); and disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. A Veteran need not exhibit "all, most, or even some" of the symptoms enumerated in the General Rating Formula for Mental Disorders to warrant the assignment of a higher rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The symptoms listed are not exhaustive, but rather "serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating." Id. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Id. Effective March 19, 2015, VA adopted as final, without change, an interim final rule amending the portion of its Schedule for Rating Disabilities dealing with mental disorders. The interim final rule replaced outdated references with references to the Fifth Edition of the Diagnostic and Statistical Manual of Mental Disorders ("DSM-5") and updated the nomenclature used to refer to certain mental disorders in accordance with DSM-5. Specifically, the rulemaking amended 38 C.F.R. § 3.384, 4.125, 4.126, 4.127, and 4.130. However, the provisions of this final rule do not apply to claims that were certified to the Board on or before August 4, 2014, even if such claims are subsequently remanded to the agency of original jurisdiction. As this appeal was certified to the Board in January 2017, the current versions of the regulations including references to DSM-5 apply. Turning to the evidence of record, the Veteran underwent a VA examination for mental disorders in September 2015. The VA examiner confirmed the Veteran's psychiatric diagnosis as major depressive disorder with anxiety. The VA examiner noted that the Veteran has been diagnosed in treatment as having an anxiety disorder, but noted that here, the anxiety disorder is considered as part of the major depressive disorder. Regarding social history, the Veteran reported he is married and has been married since 1998, however, they live separately. The Veteran reported that he maintains a relationship with his mother but does not speak to his extended family. When asked about social activities, the Veteran stated, "I don't really hang out with anybody... I have one friend, but I don't really talk with him..." Regarding occupational and educational history, the Veteran reported he was taking classes at the [omitted] through the Vocational Rehabilitation program, currently taking 14 hours of classes this semester. The Veteran also endorsed participating in a work study program for eight hours a week during the semester. When asked about free time, the Veteran reported that he often watches a lot of television, and sometimes will go to a park if it is nice out. Regarding mental health history, the Veteran indicated he has been receiving mental health treatment through the VA, including receiving a prescription for Wellbutrin and Lorazepam. Upon mental status evaluation, the VA examiner noted that the Veteran was pleasant, open, cooperative, and smiled easily during the clinical interview. The Veteran was oriented in all spheres, with attention and concentration intact. The Veteran described his mood as "sad, sometimes, a lot of times sad, lonely, empty." The VA examiner found the Veteran's insight and judgment to be intact. The Veteran reported sleeping "okay" if he is really tired. The VA examiner noted that the Veteran's memory in all forms were intact. The VA examiner indicated that the Veteran's primary symptoms of his major depressive disorder were depressed mood and anxiety. The VA examiner indicated that the Veteran's major depressive disorder symptoms resulted in occupational 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 underwent an additional VA examination in January 2016. The VA examiner indicated that the Veteran's psychiatric diagnoses included major depressive disorder and generalized anxiety disorder. During the examination, the Veteran reported he is still taking classes and participating in work study, although voiced that he is having a hard time dealing with customers over the phone and feels stressed out as a result; he stated he is considering quitting his work study. The VA examiner noted the Veteran's primary symptoms include depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in adapting to stressful circumstances, including work or a worklike setting, and inability to establish and maintain effective relationships. Upon behavioral observation, the VA examiner noted that the Veteran was on time but has a worrisome look about him, with intermittent eye contact. The VA examiner indicated that the Veteran's speech was not spontaneous and thought process was goal directed. The VA examiner noted that the Veteran reported increased stress due to school, work study, and interpersonal issues, and indicated that the Veteran has poor skills for handing stresses. The Veteran denied a suicidal plan but endorsed suicidal ideation. The VA examiner noted the Veteran's insight and judgment were fair. The VA examiner opined that the Veteran's symptoms resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The VA examiner remarked that "[t]he Veteran has severe MDD and was considered a candidate for TMS but declined the offer. He also has GAD that met the DSM-5 criteria. He has severe mood/anxiety issues with fatigue, poor concentration, increased feelings of guilt, excessive worry, passive suicidal ideation, and the Veteran has significant impairment affecting his school, work, family relationships, and interactions with others." The Veteran submitted a mental health symptom inventory received by VA on January 27, 2016, wherein he endorsed experiencing the following symptoms: anxiety, chronic sleep problems, depression, difficulty making decisions, guilt, inability to make and keep friends, isolation, lack of self-esteem, memory loss, neglects family, nervousness, panic attacks, sense of helplessness, and suicidal feelings or thoughts. VA treatment records reflect the Veteran continued to seek treatment for his service-connected major depressive disorder, and endorsed symptoms of depressed mood, stress, anxiety, panic attacks, irritability, disturbances of motivation, and suicidal ideation. In September 2016, the Veteran reported he began attending school part-time due to the stress it was causing him and the impact it was having on his mental health. See e.g., September 22, 2016, mental health outpatient note. VA treatment records also indicate that the Veteran's psychiatric symptoms persisted, and that he became homeless, and would seek treatment from the emergency department for increased feelings of anxiety and depression. The Veteran was admitted to inpatient psychiatry treatment at the VA following a December 21, 2019, emergency department visit for his mental health symptoms. At this time, the Veteran complained of worsening mood, feelings of hopelessness, trouble with substance abuse, noncompliance with his psychiatric medications, and other psychosocial stressors. He was discharged on December 27, 2019. The Veteran was afforded a VA examination in August 2020. The VA examiner confirmed the Veteran's diagnosis as major depressive disorder, recurrent, moderate, with anxious distress. During the examination, the Veteran reported that he had been separated from his wife for over 10 years, following a "poor" relationship. He indicated that he has two adult children now and described their relationships as "fair." The Veteran reported he has several close friendships, but indicated a decline in leisure activities outside the home that he once enjoyed, such as fishing and traveling. The Veteran reported that after he left the service, he worked at various jobs in customer service and the warehouse industry. The Veteran indicated he is currently unemployed and that his last job was in 2007. He indicated he had difficulty maintaining employment due to behavioral issues secondary to his mental health issues. The Veteran also reported attending some college classes but did not obtain his degree. The Veteran endorsed a continual struggle to manage the symptoms of his major depressive disorder despite engaging in counseling and taking medication. He endorsed experiencing sleep disturbances, depressed mood, and anxiety. The VA examiner indicated that the Veteran's primary symptoms of his major depressive disorder include depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The VA examiner indicated that the Veteran's major depressive disorder symptoms resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily. Upon behavioral observation, the VA examiner noted that the Veteran was appropriately groomed and dressed and was pleasant and cooperative during the evaluation. The Veteran's mood seemed irritated with congruent affect. The VA examiner noted that the Veteran maintained fair eye contact, and speech was normal and appropriate. There was no evidence of delusional thinking and thought processes appeared normal. The VA examiner described the Veteran's judgement and insight as fair and noted no suicidal or homicidal ideation. Most recently, the Veteran was afforded a VA examination in May 2021. The VA examiner indicated that the Veteran's diagnoses included major depressive disorder with anxious distress, moderate, recurrent and alcohol use disorder, moderate. During the examination, the Veteran reported that he is not involved much with his children or his family. He indicated he is still unemployed. The Veteran endorsed feelings of anxiety, panic attacks, poor sleep, stating he dozes off while watching TV, irritability, some suicidal ideation. He indicated he is no longer on his psychiatric medications and no longer in therapy, stating he doesn't think the therapy helps him. The Veteran reported he "doesn't want to do things" and is currently in Florida in a hotel room and hasn't left the hotel room in three days except to get something to eat. The Veteran reported he is used to taking his day "as it comes" and will sometimes nap or do nothing if he doesn't feel like doing anything. He endorsed feelings of poor concentration and that his anxiety is often brought on by stress. The VA examiner noted the main symptoms of his major depressive disorder include depressed mood, diminished interest or less of pleasure in almost all activities, significant weight change or appetite disturbance, sleep disturbance, fatigue and loss of energy, diminished ability to think or concentration. The Veteran also endorsed some symptoms of generalized anxiety disorder, including worry, restlessness, being easily fatigued, difficulty concentrating, irritability, and sleep disturbance. The VA examiner found the Veteran to have occupational 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. Upon behavioral observation, the VA examiner noted that the Veteran is neat and casually groomed, making fair eye contact and has good interpersonal contact with the examiner. The Veteran told the VA examiner he is tired and yawned a lot. The Veteran was able to volunteer information spontaneously but did get irritated when asked questions that are in his medical records. Thought process was coherent and organized, with relevant and non-delusional thought content. The Veteran's mood was depressed and affect congruent. His insight and judgment were categorized as intact. VA treatment records following the May 2021 VA examination reflect that the Veteran was again admitted to inpatient psychiatry treatment for depressive symptoms with suicidal ideation in the context of cocaine use and other psychosocial stressors. The Veteran reported during assessment that he was admitted because he was tired of being homeless and denied feeling depressed. See September 24, 2021 psychiatric discharge summary. Treatment notes from November 2021 reflect that the Veteran again presented to a VA emergency department indicating he was depressed and using drugs, expressing suicidal ideation with a plan to overdose. He was again admitted as a result. Treatment providers noted that the Veteran was exhibiting paranoid thinking, as well as some auditory hallucinations, as he stated he was hearing his dealer make plans to harm him and take his belongings. The Veteran was assessed as oriented to time, date, place, and self, with fair eye contact and alert and cooperative in manner. The Veteran reported increased depression and anxiety due to stressors that include conflict with family and substance abuse. He reports isolating from family and friends, and endorsed feelings of hopelessness, helplessness, worthlessness, and guilt. The Veteran also endorsed poor concentration, memory, low motivation and energy, poor appetite, and poor sleep. See e.g., November 6, 2021, mental health evaluation note. As noted above, to warrant the assignment of a higher 100 percent rating, the Veteran's major depressive disorder with anxiety must manifest in symptoms causing total occupational and social impairment. While the Veteran's disability does cause severe impairment, the persuasive evidence of record is against a finding that his major depressive disorder with anxiety causes total impairment. Indeed, although the Veteran reported a sometimes-strained relationship with his family and friends, relationships with others do exist. There is also no evidence in the record showing that his service-connected psychiatric disorder has manifested in those symptoms typically associated with total social and occupational impairment, such as gross impairment in thought processes or communication; grossly inappropriate behavior; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. Id. Throughout the record, the Veteran has consistent been oriented, alert, and aware, able to communicate with treatment providers or examiners in an appropriate manner. The record also does not support that he has other symptoms on par with the level of severity contemplated by those symptoms. As mentioned above, the medical evidence of record consistently notes that the Veteran has been oriented to person, time, and place, casually and appropriately dressed, with intact thought processes. He has been described as cooperative and has for the most part until very recently, denied delusions or hallucinations. While he has described having intermittent suicidal ideation, the evidence does not indicate that he is a persistent danger to himself or others. Although the Veteran has difficulty with establishing and maintaining relationships, suffers persistent anxiety, and at times has suicidal ideation, the weight of the evidence shows that his major depressive disorder does not cause total occupational and social impairment, warranting an increased rating to 100 percent. He is able to keep relationships with family and some friends, albeit strained relationships. In short, the Veteran's major depressive disorder with anxiety symptoms cause occupational and social impairment in most areas, as contemplated by the 70 percent rating currently assigned. For these reasons, the benefit sought on appeal is denied. 2. Entitlement to a separate compensable disability rating for anxiety disorder is denied. The Veteran is currently service-connected for an acquired psychiatric disorder characterized as major depressive disorder with anxiety. However, the Veteran contends that he is entitled to a separate rating for anxiety disorder. Regulation sets out a schedule for rating mental disorders that is divided into multiple diagnostic codes, to include Diagnostic Code 9434 for major depressive disorder and Diagnostic Code 9413 for unspecified anxiety disorder. 38 C.F.R. § 4.130. However, the mental disorders are rated under the General Rating Formula for Mental Disorders, contemplating a zero percent, 10 percent, 30 percent, 50 percent, 70 percent, and 100 percent rating based on representative symptoms. Thus, the symptomatology associated with the Veteran's major depressive disorder and anxiety disorder are contemplated in assigning a singular rating under the general rating formula for mental disorders. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. In other words, although some VA examiners have opined that the Veteran's major depressive disorder and anxiety disorder manifest different symptomatology (see January 2016 VA psychiatric examination), all of the Veteran's symptoms (resulting from both his major depressive disorder and his anxiety disorder) have been considered in his currently assigned 70 percent rating under 38 C.F.R. § 4.130. There is no basis for assigning separate compensable evaluations in contemplation of the Veteran's anxiety disorder and major depressive disorder, as this would amount to pyramiding. See 38 C.F.R. § 4.14. Here, any symptoms caused by depression and anxiety are already being contemplated in the evaluation currently assigned. For the reasons stated above, a separate compensable rating for anxiety disorder is not warranted. See 38 C.F.R. § 4.130. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. M. Lowman, 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.