Citation Nr: 1754134	
Decision Date: 11/28/17    Archive Date: 12/07/17

DOCKET NO.  14-08 409	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Salt Lake City, Utah


THE ISSUE

Entitlement to an initial rating in excess of 30 percent for major depressive disorder (MDD) and anxiety disorder. 


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

R. Casadei, Counsel 

INTRODUCTION

The Veteran served on active duty from September 2001 to January 2006.

This matter comes on appeal before the Board of Veterans' Appeals (Board) from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah.

The Board notes that the Veteran was initially granted service connection for MDD and anxiety disorder in the October 2011 rating decision.  Upon review, the Veteran submitted new and material evidence within the one year appeal period following this decision, and as such, that rating decision did not become final.  The Veteran's claim, therefore, is on appeal from the October 2011 rating decision.

The Veteran testified before the undersigned in a June 2015 Travel Board hearing, the transcript of which is included in the record.


FINDINGS OF FACT

1.  For the entire rating period on appeal, the Veteran's MDD and anxiety disorder have been manifested by occupational and social impairment with deficiencies in most areas, such as work, family relations, judgment, thinking, and mood.

2.  For the entire rating period on appeal, the Veteran's MDD and anxiety disorder have not been manifested by total social and occupational impairment.


CONCLUSION OF LAW

For the entire rating period on appeal, the criteria for a disability rating of 70 percent, but no higher, for MDD and anxiety disorder have been met.  38 U.S.C. §§ 1155, 5107 (2002); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9400, 9434 (2017).
REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duties to Notify and Assist

In this case, neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument).

Disability Rating Legal Criteria

Disability ratings are determined by comparing a Veteran's present symptoms with criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  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).

When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3.

The Veteran is in receipt of a 30 percent disability rating for MDD and anxiety disorder under Diagnostic Code 9434 for the entire rating period on appeal.  A 30 percent rating is assigned when a mood disorder causes occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks, chronic sleep impairment and mild memory loss.  38 C.F.R. § 4.130 (2017).

A 50 percent rating 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; and difficulty in establishing and maintaining effective work and social relationships.  38 C.F.R. § 4.130.

A 70 percent disability rating is assigned 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 that is 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.  Id.

A 100 percent disability rating is assigned for 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; and memory loss for names of close relatives, or for the veteran's own occupation or name.  Id.

In applying the above criteria, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability.  See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998) citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996) (the Board is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence which does so).

In determining the level of impairment under 38 C.F.R. § 4.130, a rating specialist is not restricted to the symptoms provided under the diagnostic code, and should consider all symptoms which affect occupational and social impairment, including those identified in the DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM-IV or DSM 5).  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).  If the evidence demonstrates that a claimant suffers symptoms or effects that cause an occupational or social impairment equivalent to those listed in that diagnostic code, the appropriate, equivalent rating is assigned.  See Mauerhan, 16 Vet. App. 436.

Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to the Diagnostic and Statistical Manual for Mental Disorders, Fourth Edition (DSM-IV).  The amendments replace those references with references to the recently updated DSM-5.  As the Veteran's claim was certified to the Board after August 4, 2014, the Board will use the recently updated DSM-5.  See 79 Fed. Reg. 45,093-02 (August 4, 2014).

As relevant to this case, the DSM-5 states that it was recommended that the use of Global Assessment of Functioning (GAF) scores be dropped for several reasons, including their conceptual lack of clarity and questionable psychometrics in routine practice.  The Board recognizes the Court's holding in Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) regarding the importance of GAF scores, however, as the medical community has determined that GAF scores are an unreliable measure of a psychiatric disability, the Board will afford the GAF scores mentioned in the record no probative value.  See also Golden v. Shulkin, No. 16-1208 (U.S. Vet. App. April 19, 2017) (Finding that the Board provided an inadequate statement of its reasons or bases for relying on GAF scores in its decision when the appeal was certified after August 4, 2014, and the DSM-5 applied to the claim.

Rating Analysis for MDD and Anxiety Disorder

The Veteran maintains that his MDD and anxiety disorder disability warrants a disability rating in excess of 30 percent for the entire rating period on appeal.

The Veteran's VA treatment records indicate that in June 2011, the Veteran sought emergency treatment for a persistent panic attack.  It was noted that the he had been cleaning "manically" that morning while listening to loud music, and that he began to "notice small noises" once the music was turned off. 

The Veteran was afforded a VA examination in September 2011.  In the report, the examiner noted that the Veteran arrived 10 minutes late as he was in court due to charges of retail theft.  The Veteran stated that he had taken the shirts to sell to a used clothing store in order to get money to pay his bills.  The examiner noted that the Veteran had a history of recurrent major depressive episodes.  The Veteran also reported intermittent suicidal ideation.  After conducting an interview and reviewing medical records, the examiner stated that when the Veteran is depressed, his symptoms had intermittently interfered with social functioning, work, thinking, and mood.  It was noted that the Veteran's psychiatric symptoms includes depressed mood, panic attacks, sleep impairment, memory problems, flattened affect, disturbances of motivation and mood, difficulty sustaining relationships, intermittent suicidal ideation, panic interfering with ability to work, and depression, at times interfering with ability to work.  

The Veteran was afforded another VA examination in May 2013.  During the evaluation, the Veteran reported living with his girlfriend and her son, but described this relationship as "rough."  The Veteran indicated that he had one friend.  The Veteran also reported that he was unemployed and had last worked as a pawn broker from June to October 2011.  However, the Veteran was taking full-time coursework at the University of Utah and was studying psychology/social work.  Upon mental status examination, the Veteran endorsed suicidal thoughts "every once in a while."  His mood was reported to be flat and affect was somewhat constricted.  Other symptoms were noted to include depressed mood, anxiety, chronic sleep impartment, and panic attacks occurring weekly or less often.  The examiner then noted that the Veteran's psychiatric disorder 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.  

During the June 2015 Board hearing, the Veteran testified that he had suicidal ideation "constantly."  See Hearing Transcript pg. 7.  He indicated that they were passive suicidal thoughts involving hopelessness and not wanting to live anymore.  The Veteran also indicated that he was currently employed and working at the University as a peer specialist, but indicated that he had lost 1-2 days of work due to his depression and anxiety.  He also testified that he had been divorced twice and had separated in 2013 from his girlfriend; the Veteran indicated that his depression was part of the cause for these separations.  He also stated that he was afraid of new situations and was unable to make new friends.  Finally, the Veteran indicted that he had difficulty getting out of bed in the morning because he cannot "find any motivation to get going."  Id., at 9.

Upon review of the evidence of record, both lay and medical, the Board finds that the evidence is in equipoise as to whether the Veteran's MDD and anxiety disorder more nearly approximates a 70 percent disability evaluation (i.e., occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood).  The VA psychiatric examinations discussed above reveal that the Veteran's MDD and anxiety has been manifested by near-continuous depression, anxiety, suicidal ideation, and loss of interest in some activities.  The Board finds that some of these symptoms are specifically included in the 70 percent rating criteria under Diagnostic Code 9434 and more nearly approximate occupational and social impairment, with deficiencies in most areas, such as school, family relations, judgment, thinking, and mood.  Accordingly, and resoling reasonable doubt in the Veteran's favor, the Board finds that a 70 percent rating for MDD and anxiety is warranted.

The Board further finds that, for the entire rating period on appeal, the Veteran's MDD and anxiety disorder does not more nearly approximate the criteria for a maximum 100 percent schedular rating for any period on appeal.  The Board finds that the Veteran's symptoms do not more nearly approximate total social and occupational; impairment and do not contemplate the symptomology considered under the 100 percent rating criteria.  The evidence shows that the Veteran has been able to attend school and is currently employed.  Further, although he has had difficulties recently with his girlfriend and was previously married, he did report having one close friend during the June 2015 Board hearing.  

In reaching this conclusion regarding the degree of occupational and social impairment, the Board considered all the Veteran's psychiatric symptoms and impairment, whether or not the symptom is specifically listed in the rating criteria, considering such symptoms as "like or similar to" the symptoms in the rating criteria.  See Mauerhan, 16 Vet. App. at 442 (stating that the symptoms listed in VA's general rating formula for mental disorders is not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous); Vazquez-Claudio, 713 F.3d at 116-17 (the rating criteria under § 4.130 is "symptom-driven" and "a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration").

With this in mind, the evidence shows that the Veteran's overall disability picture is already adequately contemplated by the 70 percent rating granted herein.  The Veteran does suffer from disturbance of motivation and mood (depression and anxiety), anxiety attacks, and sleep impairment, but these symptoms are specifically contemplated in the 30, 50, and 70 percent rating criteria.  The same is true with the Veteran's near-continuous depression and intermitted suicidal ideation, which are a symptoms specifically contemplated under the 70 percent disability rating. Moreover, the Veteran has not been noted to have neglect of personal appearance and hygiene.  The evidence also does not demonstrate that the Veteran has persistent delusions or hallucinations and he does not contend otherwise.  

For these reasons, the Board finds that the evidence of record does not demonstrate total social and occupational impairment and do not more nearly approximate the symptoms contemplate under the 100 percent rating criteria.  In summary, the Board finds that a 70 percent rating for MDD and anxiety disorder, but no higher, is warranted for the entire initial rating period on appeal.

Finally, the Board notes that neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record).


ORDER

For the entire rating period on appeal, a 70 percent rating, but no higher, for MDD and anxiety disorder is granted, subject to the laws and regulations governing monetary benefits.




____________________________________________
K. OSBORNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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