Citation Nr: 22017681 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 20-16 406 DATE: March 25, 2022 ORDER A rating of 70 percent, but no higher, for the service-connected persistent depressive disorder is granted for the entire period on appeal, subject to the laws and regulations governing the award of monetary benefits. FINDING OF FACT Throughout the period on appeal, the Veteran's persistent depressive disorder has been manifested by no worse than occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. CONCLUSION OF LAW The criteria for a rating of 70 percent, but no higher, for the service-connected persistent depressive disorder have been met for the entire period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to August 1999. During the current appeal, and specifically in July 2021, she testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the Veteran's claims file. Then, in October 2021, this matter was remanded by the Board of Veterans Appeals (Board) for further development. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Increased Ratings Persistent Depressive Disorder Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. A veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). Psychiatric disabilities, however diagnosed, are rated under the General Rating Formula for Mental Disorders, and the criteria under this formula is considered no matter which diagnostic code is assigned. 38 C.F.R. § 4.130. The psychiatric symptoms listed in the rating criteria are not an exhaustive list, but rather serve as 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). A 30 percent rating is assigned when the evidence shows 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 behaviour, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, DC 9411. A 50 percent rating is assigned when the evidence shows 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. Id. A 70 percent rating is assigned when the evidence shows 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); or inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; danger of hurting self or others; intermittent inability to perform activities of living (including maintenance of minimal hygiene); disorientation to time or place; or, memory loss for names of close relatives, occupation, or own name. Id. Also, 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. 38 C.F.R. § 4.126(a). 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. Id. However, when evaluating the level of disability from a mental disorder, the rating agency will 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). Here, the Veteran seeks a higher disability rating for her service-connected persistent depressive disorder, which is currently rated under DC 9411. During the course of this appeal, and specifically in a January 2022 rating decision, the rating was increased from 30 percent to 50 percent from May 13, 2020, and then to 70 percent from July 19, 2021. VA treatment records show that in March 2018, the Veteran reported she was having difficulty controlling her anxiety and stated that she felt overwhelmed by her anxiety. She described trouble sleeping, significant anxiety, panic attacks, and poor appetite. She reported experiencing feelings of depression, powerlessness, hopelessness, an inability to enjoy things, anorexia with weight loss, low energy, and difficulty concentrating. However, she denied suicidal or homicidal ideation. Also in March 2018, during a visit with her private therapist, she reported that her depression symptoms were so bad that she had taken a leave of absence from work. Then, at an August 2018 VA examination, she described depression symptoms, including a decreased interest in previously enjoyable activities, trouble sleeping, low energy, and low appetite. She noted that she felt very lonely, seldom left her home, was easily distracted, had poor concentration, and did not trust her own judgment. She reported that her second husband had recently committed suicide, but that she was receiving support from family and friends. She was employed as a bartender prior to his death, but had not returned to work since his death. The examiner noted additional symptoms of depressed mood, anxiety, chronic sleep impairment, and mild memory loss. Further, the examiner noted that the Veteran was appropriately dressed, oriented, cooperative, and in no apparent distress throughout the interview. Her psychomotor activity and speech were normal, and her mood was described as mildly dysphoric with congruent affect. Her judgment was intact, and her thought processes were coherent, linear, and goal directed. Her attention span was adequate throughout the interview, but the examiner did note that the Veteran had several periods of distraction. She denied any suicidal or homicidal ideation, and there was no evidence of any delusions or hallucinations. The examiner determined that she was capable of managing her own financial affairs and that she experiences 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. In July 2020, she was afforded another VA examination wherein she reported that she was living with her significant other and her late husband's brother. She went on to describe her romantic relationship as positive and healthy, and also stated that she has good relationships with her mother, son, and one friend. However, she reported that she was unemployed and had not worked since March 2020, when she left her part time job due to difficulties with coworkers and anxiety induced by male customers. She further reported that she struggles socially and tends to isolate herself, as she becomes anxious and irritable easily. She described her mood as low most of the time and reported that she often feels hopeless and helpless. The examiner also noted that she experiences depressed mood, anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty adapting to stressful circumstances, including a work or work-like setting. The examiner determined that she was capable of managing her own financial affairs and that she did not pose a threat to herself or others. However, the examiner also determined that she experiences occupational and social impairment with reduced reliability and productivity. The examiner further explained that the Veteran's symptoms are cyclical, with periods of exacerbation and then improvement, which impact her ability to attend work regularly, interact effectively with others, and complete job tasks in an efficient manner. At the July 2021 hearing, the Veteran testified that she experiences depression, anxiety, and panic attacks. She also testified that she experiences periods of unprovoked irritability that can range from her being short with others to her throwing objects and becoming violent. She also fears being in public, especially around strangers, and has panic attacks weekly. She further testified that she isolates herself and spends most of her time alone, as she gets anxious around other people, even people she is comfortable with. The Veteran submitted a psychological impairment evaluation performed by her private therapist in July 2021. Her therapist noted that the Veteran continues to experience intrusive thoughts and memories, hyperarousal, and intense mood and cognitive alterations. He also noted that she has deficiencies in mood, difficulty adapting to stressful circumstances, and an inability to establish and maintain effective relationships. The therapist reported her prognosis as guarded and explained that the Veteran is likely to have periods of regression in ability to effectively function in normal daily activities. Further, he explained, it is uncertain if the Veteran is capable of performing gainful employment with the symptoms and limitations stemming from her psychological impairment, as she will likely struggle with symptomatology that will inconsistently affect her work ability. Additionally, the therapist opined that the Veteran's symptoms and limitations discussed in the evaluation date back to at least January 24, 2018, the date when she began treatment with the therapist. In December 2021, the Veteran underwent another VA examination wherein she reported that she was living with her significant other and described her home life as the best it has ever been. She also reported having good relationships with family members and one friend. However, she explained that she is unemployed and has not worked since March 2020 and that she feels sad daily, has low motivation and low energy, and has anxiety about leaving her home. The examiner also noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks weekly or less, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and neglect of personal appearance and hygiene. The examiner noted that she was alert and fully oriented, casually dressed and groomed, and her mood was depressed with congruent affect. Her eye contact was adequate, speech was clear and articulate, thought content was logical and coherent, and thought processes were linear and goal directed. There was no evidence of delusions or hallucinations, and she denied any suicidal or homicidal ideation. The examiner determined she was capable of managing her own financial affairs and found that she experiences occupational and social impairment with occasional decrease in working efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. After a thorough review of the evidence, the Board finds that a rating of 70 percent, but no higher, is warranted for the Veteran's persistent depressive disorder for the entire period on appeal. The Veteran has consistently reported experiencing anxiety, depressed mood, and panic attacks interfering with work and social activities, as well as chronic sleep impairment, difficulty concentrating, disturbances of mood and motivation, difficulty in adapting to stressful circumstances, and inability to establish and maintain effective relationships throughout the appeal period. However, she has consistently been oriented and cooperative during her psychiatric visits and has consistently denied suicidal or homicidal ideation, delusions, or hallucinations and there are no treatment records associated with the claims file that indicate her symptoms were more severe than those discussed herein at any time during the appeal period. Moreover, the Board also finds significant that the Veteran's persistent depressive disorder rating was increased to 70 percent from July 19, 2021, as it appears that the 70 percent increase was based on the private psychological impairment evaluation, which was performed on July 19, 2021. The Board finds this to be significant because the private provider who performed the evaluation also opined that the Veteran's symptoms and limitations discussed in the evaluation date back to at least January 24, 2018. This evidence further supports a finding that a 70 percent rating is warranted for the entire appeal period. However, the Board also finds that the evidence of record does not establish that the Veteran's psychiatric symptoms have resulted in total occupational and social impairment at any time during the period on appeal. While the Veteran's symptomatology has impacted her ability to establish and maintain effective relationships, it cannot be said that she has been totally socially impaired at any time throughout the appeal period. She has consistently reported good relationships with her family, including her significant other, son, and mother. As such, the criteria for a 100 percent rating for her persistent depressive disorder has not been met at any time during the appeal period. A rating of 70 percent, but no higher, for this disability is granted for the entire period on appeal. The Board acknowledges the Veteran's statements that she has been unable to work due to her disability since March 2020. However, he currently has an appeal pending in the Appeals Modernization Act system for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Thus, entitlement to a TDIU will not be addressed in this decision. Further, the Board notes the Veteran's request that her service-connected psychiatric disorder be re-characterized as posttraumatic stress disorder (PTSD). See July 2021 hearing transcript. However, at the December 2021 VA examination, the examiner specifically found that the Veteran's PTSD is attributable to her marriage to her husband who was emotionally and mentally abusive. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Benson, 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.