Citation Nr: 22017579 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-07 508 DATE: March 25, 2022 ORDER Entitlement to an initial 50 percent rating for unspecified depressive disorder from May 16, 2018, to May 5, 2021, is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to an initial rating greater than 50 percent for unspecified depressive disorder is denied. FINDING OF FACT From May 16, 2018, to May 5, 2021, the Veteran's unspecified depressive disorder more nearly approximated occupational and social impairment with reduced reliability and productivity; but did not at any time during the appeal period more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for an initial 50 percent rating for unspecified depressive disorder, from May 16, 2018 to May 5, 2021, have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.126, 4.130, Diagnostic Code (DC) 9435. 2. The criteria for an initial rating greater than 50 percent for unspecified depressive disorder have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.126, 4.130, DC 9435. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1966 to May 1969. This case comes before the Board of Veterans' Appeals (Board) from a November 2018 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to service connection for unspecified depressive disorder and assigned a 30 percent rating, effective May 16, 2018. In November 2019 the Veteran filed a notice of disagreement (NOD) and in January 2020 the RO issued a statement of the case (SOC). In February 2020 the Veteran filed a substantive appeal (via VA Form 9). As a final preliminary matter, the Board notes that a separate appeal stream was developed by the RO for the Veteran's unspecified depressive disorder. In May 2021 the Veteran filed a Fully Developed Claim (VA Form 21-526EZ) and in response the RO issued an August 2021 rating decision. In that decision, the RO increased the rating for the Veteran's unspecified depressive disorder to 50 percent, from May 5, 2021, creating a staged rating. Higher Initial Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1. Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Unspecified depressive disorder When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When evaluating the level of disability from a mental disorder, VA will also consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under the General Rating Formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to particular symptoms such 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; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating 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; 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. A 100 percent rating is warranted 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. Under the General Rating Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. See 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. The Board must then 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 (Fed. Cir. 2013). The Veteran contends that his disability rating should be higher, and, for the following reasons, the Veteran's unspecified depressive disorder symptoms and impairment more nearly approximate the criteria for a 50 percent rating from May 16, 2018 to May 5, 2021. In a May 2018 mental health survey, the Veteran reported that he experienced negative memories, thoughts, or feelings related to his service quite a bit. The Veteran noted he feels distant or cut off from other people. A November 2018 VA examiner noted that the Veteran's unspecified depressive disorder caused him occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. The VA examiner noted that the Veteran experiences depressed mood, mild memory loss, and disturbances of motivation and mood. The VA examiner also noted that the Veteran has adequate social skills, and his abstract reasoning and concentration are adequate. A June 2021 VA examiner noted that the Veteran's unspecified depressive disorder caused him occupational and social impairment with reduced reliability and productivity. The VA examiner noted that the Veteran is in a relationship for the past three years and was previously divorced. The Veteran reported that he has a good relationship with his kids and talks to his brother. The Veteran also reported that he has a couple friends and plays cards with them about once a month. Generally, the Veteran reported he gets along with others. The VA examiner noted that the Veteran plays golf and does yardwork. The Veteran also reported that he volunteers as a junior vice commander for the Veterans for Foreign Wars. The VA examiner noted that the Veteran experienced depressed mood, anxiety, mild memory loss, disturbances of motivation and mood, and difficulty adapting to stressful circumstances. Overall, the Veteran has experienced symptoms such as disturbances of motivation and mood and problems with concentration. These symptoms caused him occupational and social impairment with reduced reliability and productivity, approximating the symptoms and impairment required for a 50 percent rating under the general rating formula. Although the Veteran has not exhibited all of the symptoms in the criteria for a 50 percent rating under DC 9435, the use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. Therefore, an initial 50 percent rating is warranted for the entire appeal period. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested." The Court also held that the Board erred when it set an effective date based on the speech recognition scores required by 38 C.F.R. § 4.85(a), rather than 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o), which tie an effective date to the earliest date a disability is ascertainable. Id. Based on the above, the Board finds that the Veteran did not suddenly get worse on May 5, 2021. The Veteran's unspecified depressive disorder symptomatology has remained consistent, and the evidence is approximately evenly balanced as to whether his symptoms more nearly approximated the criteria for a 50 percent rating throughout the appeal period. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial 50 percent rating from May 16, 2018 to May 5, 2021 is warranted. As the degree of disability has remained uniform throughout the appeal period, a staged rating is not warranted. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's symptoms and overall impairment caused by his service-connected unspecified depressive disorder do not more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment. The Veteran reported that he is in a relationship, speaks to his family which includes his brother and children, and has friends that he interacts with on a regular basis. The Veteran reported that he volunteers indicating that he can work independently, appropriately, and effectively. The June 2021 VA examiner noted that the Veteran could manage his financial affairs. The evidence of record does not demonstrate that the Veteran experienced symptoms such as gross impairment in thought processes or communication; grossly inappropriate behavior; persistent danger of hurting himself or others; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Thus, the evidence of record reflects that the impairment caused by the Veteran's unspecified depressive disorder symptoms do not more nearly approximate occupational and social impairment with deficiencies in most areas or total occupational and social impairment required for a 70 or 100 percent rating under the general rating formula. For the above reasons, the evidence is neither evenly balanced nor approximately so with regard to whether an initial rating greater than 50 percent for unspecified depressive disorder is warranted. Rather, the evidence persuasively weighs against an initial rating greater than 50 percent. The benefit of the doubt doctrine, see 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3, is therefore not for application as to this claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Miller, 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.