Citation Nr: 22014083 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 18-54 738 DATE: March 11, 2022 ORDER Prior to October 11, 2018, entitlement to an initial disability rating of 50 percent, but no higher, for depression and anxiety disorder is granted. From October 11, 2018, entitlement to a disability rating of 70 percent, but no higher, for depression and anxiety disorder is granted. FINDINGS OF FACT 1. Prior to October 11, 2018, the severity, frequency, and duration of the Veteran's depression and anxiety disorder symptoms was more nearly approximated by occupational and social impairment with reduced reliability and productivity. 2. From October 11, 2018, the severity, frequency, and duration of the Veteran's depression and anxiety disorder symptoms is more nearly approximated by occupational and social impairment with deficiencies in most areas. CONCLUSIONS OF LAW 1. Prior to October 11, 2018, the criteria for a disability rating of 50 percent for depression and anxiety disorder 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 9434. 2. From October 11, 2018, the criteria for a disability rating of 70 percent for depression and anxiety disorder 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 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served from December 1966 to December 1968 with documented service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2015, September 2017, and July 2019, the Board remanded the matters for further development. The Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions). INCREASED RATINGS A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's service-connected depression and anxiety disorder is currently rated 30 percent disabling prior to December 27, 2019 and 50 percent disabling thereafter pursuant to Diagnostic Code 9434 for rating major depressive disorder. Mental disorders are rated pursuant to the General Rating Formula for Mental Disorders (General Formula). Under the General Formula, a 30 percent rating is assigned 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 normal conversation), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events). A 50 percent evaluation is warranted when there is 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 or abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation 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); inability to establish and maintain effective relationships. Id. A 100 percent evaluation is indicated 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); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). 1. Entitlement to an initial rating in excess of 30 percent for depression and anxiety disorder prior to December 27, 2019. The Veteran's representative argues that a rating in excess of 30 percent is warranted for the Veteran's acquired psychiatric disorder prior to December 27, 2019. He points to a May 2011 VA examination where the examiner noted the Veteran had problems with social and occupational functioning due to problems dealing with his time in the military. The representative pointed to positive reports of suicidal ideation and moderate to severe GAF scores as evidencing symptomatology warranting a higher rating. The Veteran's representative also argues that the Beck Depression Inventory should have been used during the VA examinations. The Board concludes that the Veteran's depression and anxiety disorder symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity for the period prior to October 11, 2018. Accordingly, an initial disability rating of 50 percent, but no higher, is warranted for the Veteran's service-connected depression and anxiety disorder. Turning to the evidence of record, VA and private treatment records, the January 2011 VA contract examination, and the Veteran's lay statements show that the Veteran's major depression and anxiety disorder was manifested by symptoms associated with a 30 percent rating, including panic attacks, anxiety, and chronic sleep impairment, and symptoms associated with a 50 percent rating, such as disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. He also had symptoms that are not listed with a specific rating, such as fatigability and crying spells. The Veteran's VA treatment records indicate symptoms of depression and anxiety. A PHQ-9 was administered during a February 2010 encounter where the Veteran scored a 16, indicating moderate depression. During an April 2010 encounter, the Veteran reported that he often felt depressed with no energy. At times he would sleep much of the day and avoid crowds. He acknowledged that these feelings would come and go. He reported intrusive thoughts and crying spells on occasion with reduced interest in pleasurable activities. During the April 2010 encounter, the Veteran stated that he sat down with a shotgun in 1968 after going hunting and thought about suicide; however, he denied any suicide attempts or plans to harm himself or others. During the January 2011 examination, the Veteran reported being married for 40 years and that he was employed for a window company. He acknowledged that his job was stressful and tough. He was diagnosed with depression and anxiety. The Veteran reported a history of episodic symptoms, which waxed and waned, to include social isolation, guilt, insomnia, and anergia. The examiner considered the severity of the symptoms as moderate. The Veteran was noted to exhibit "survivor's guilt" and had a history of 25 years of insomnia. The Veteran did not indicate a history of suicidal ideology or violent behavior. He denied re-experiencing the traumatic event from military. The examiner found that the Veteran did not demonstrate any avoidance to stimuli or increased arousal due to the traumatic event. The examiner noted that the Veteran is capable of managing his finances and did not have mental difficulties with activities of daily living. The examiner concluded that the Veteran's neuropsychiatric symptoms caused occupational and social impairment with occasional decrease in work efficiency and intermittent inability to perform occupational tasks. After a review of the above, the Board finds the severity, frequency, and duration of the Veteran's listed and unlisted symptoms most closely approximate the symptoms contemplated by a 50 percent rating, or cause occupational and social impairment with reduced reliability and productivity, prior to October 11, 2018. See 38 C.F.R. § 4.126. During this time, symptoms of disturbances in motivation and mood were present with an episodic frequency since he separated from service. Symptoms of anxiety, depression, and associated neuropsychiatric symptomatology were indicated to be moderate in severity, causing marked interference with occupational and social functioning. While the Veteran maintained full-time employment, he acknowledged that he was having increased difficulty with occupational tasks. Additionally, while the Veteran reported being happily married with a good family life, he also acknowledged often feeling depressed and anxious and would avoid social situations and driving. The Board recognizes that the Veteran recalled an episode of suicidal ideation in 1968, which is contemplated by the 70 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the Veteran denied suicidal ideation frequently in the treatment records from this time and during the January 2011 VA examination. The Board is further persuaded by the evidence that the Veteran was not considered a threat to himself or others in the treatment records from this time. As such, the Board finds that the Veteran did not demonstrate suicidal ideation during this period as contemplated for the next-higher, 70 percent disability rating. In short, the evidence of record persuasively weighs in favor of finding that the severity, frequency, and duration of the Veteran's symptoms is more nearly approximated by the level of impairment required for a 50 percent rating. To this extent, the appeal is granted. 2. Entitlement to a rating in excess of 50 percent for depression and anxiety disorder (for the entire period on appeal). The Veteran contends that his acquired psychiatric disorder is more severe than the 50 percent rating he is assigned. During VA examinations and medical encounters, he has reported symptoms of depression, guilt, sleep disturbances, anxiety, mild memory loss, and anergia. Additionally, he reported worsening of symptoms including increased anger, irritability, nightmares, intrusive thoughts, avoidance of crowds, startle response, crying spells, decreased interest in pleasurable activities, and loss of motivation to complete activities of daily living, including reduced attention to personal hygiene. The Veteran's representative points to a December 2019 VA examination where the Veteran reported anxiety, neglect of personal hygiene, irritability, anger, withdrawal from others, and loss of interest in activities. The representative further noted positive reports of suicidal ideation and moderate to severe GAF scores, finding such indicative of symptomatology warranting a higher rating. He also argues that a Beck Depression Inventory should have been administered during the VA examinations. The issue in this appeal is whether the Veteran's depression and anxiety disorder symptoms were more nearly approximated by the level of impairment required for a disability rating of 70 percent or higher at any time during the appeal period. The Board concludes that the evidence of record persuasively favors assigning a 70 percent disability rating from October 11, 2018. Turning to the evidence of record, VA and private treatment records, the October 2018 VA examination report, the December 2019 VA examination report, and the Veteran's lay statements demonstrate that the Veteran's depression and anxiety disorder was manifested by symptoms associated with a 50 percent rating including panic attacks more than once a week, mild memory impairment, and disturbances in motivation and mood, and symptoms associated with a 70 percent rating, including passive suicidal ideation and impaired impulse control. He also had symptoms that are not listed with a specific rating, such as fatigability, crying spells, and easy startling. During the October 2018 VA examination, the Veteran reported depressed mood, anxiety, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events. He was fully oriented with mild memory difficulties. The Veteran stated that he occasionally experiences periods during which he does not want anyone around him. He indicated that he drinks alcohol on occasion, typically when he is upset. He reported intermittent suicidal ideation, but he denied a plan or intent to hurt himself. During the December 2019 VA examination, the Veteran reported irritability, easy-to-anger, sleep disturbance, nightmares 1-2 nights weekly, intrusive thoughts, avoidance of crowds and social settings, avoidance of people and things that remind him of combat, exaggerated startle response, crying spells, withdrawal from family and friends, loss of interest in previously enjoyed activities, and loss of motivation to complete activities of daily living. He denied suicidal ideation. He reported increased anxiety, a tendency to worry about everything, and feeling keyed up and on edge most of the time. His social activities included spending time with his family and attending to daily tasks. The examiner noted that the Veteran's hygiene was good and that he responded to questions appropriately. The Veteran's mood was noted as mildly depressed. He endorsed initial insomnia and a sleep continuity disturbance. The Veteran's speech was logical, goal directed, normal in rate and tone, and there were no difficulties with articulation. Thought processes were within normal limits and reality testing was intact. Thought content was within normal limits, and there were no indications of auditory or visual hallucinations, he did not manifest any bizarre mentation or abnormal fears or obsessions. He denied homicidal and suicidal ideation. The examiner found the Veteran had good insight and judgment. The Board finds the severity, frequency, and duration of the Veteran's listed and unlisted symptoms are more nearly approximated by a 70 percent rating from October 11, 2018, the date of the VA examination wherein the Veteran reported suicidal ideation. Additionally, during the December 2019 examination, the Veteran reported irritability with an exaggerated startle response and symptoms found consistent with difficulty adapting to stressful circumstances. In offering this finding, the Board does not disregard that the Veteran did not show many of the symptoms enunciated in the criteria for such a rating under the General Formula, including obsessional rituals, thought or communication deficits, or the inability to function independently. However, as noted above, VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead, 29 Vet. App. at 19. Given the nature and severity of the Veteran's symptoms demonstrated during the October 2018 VA examination, the requisite disability picture is shown in this case. Notably, the Veteran described a history of passive suicidal thoughts. Although his suicidal thoughts are unaccompanied by plan or intent, the Board does not discount the seriousness of this symptom. The Board has considered whether a 100 percent rating is warranted in this case at any time. However, the record does not establish that the Veteran was rendered totally occupationally and socially impaired as due to his psychiatric symptoms, as required for such a rating. Rather, the Veteran maintained steady employment throughout the period on appeal and ongoing relationships with his spouse and children. He did not report the consistent need for assistance with the activities of daily living and was typically capable of communicating appropriately and effectively with his examiners. Additionally, he did not demonstrate such a history of gross impairment in thought processes, persistent delusions or hallucinations, or severe memory loss as to warrant a 100 percent rating under the General Formula. Rather, the Veteran's disability picture from October 11, 2018 is fully contemplated in the criteria for a 70 percent rating. While the Veteran believes that he is entitled to a higher rating on the basis of Global Assessment of Functioning (GAF) scores, "[a]n adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness." Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). When considering the Veteran's moderate to severe GAF scores in the context of the remaining medical evidence of record, the Board finds that the impairment caused by the Veteran's mental disorder is consistent with the overall social and occupational functioning of a 50 percent rating prior to October 11, 2018 and a 70 percent rating thereafter. Additionally, while the Veteran's representative asserts that use of the self-report Beck Depression Index would provide a clearer picture of the severity of the Veteran's disability, the Board finds the medical evidence of record provides sufficient detail for the Board to evaluate the Veteran's depression and anxiety disorder. Indeed, the VA Mental Disorder Disability Benefits Questionnaire includes consideration of the Veteran's description of his symptoms in addition to the applicable rating criteria. The Board also points to the PHQ-9 and other medical evidence of record describing the nature, quality, and severity of the Veteran's neuropsychiatric symptoms. As such, the Board finds the medical evidence of record is sufficient to adjudicate the Veteran's claim. Accordingly, a 70 percent rating for anxiety disorder and depressive disorder is granted from October 11, 2018. Lindsey M. Connor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Macek, M. A. 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.