Citation Nr: 18132209
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-42 369
DATE:	September 6, 2018
ORDER
Entitlement to an initial disability rating higher than 30 percent for mood disorder is denied.
FINDING OF FACT
The Veteran’s mood disorder manifests in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.
CONCLUSION OF LAW
The criteria for a disability rating greater than 30 percent for mood disorder are not met.  38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. § 4.130, Diagnostic Code (DC) 9435 (2018).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran served on active duty in the United States Marine Corps from July 1979 to May 1983.  This matter is before the Board of Veterans’ Appeals (Board) on appeal from an August 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Offices (RO) in Louisville, Kentucky. 
The Board notes that appeals were perfected in December 2016 on the issues of entitlement to higher ratings for left shoulder disabilities and an earlier effective date for a separate evaluation for a left shoulder disability.  These issues were also certified to the Board in December 2016.  However, the electronic Veterans Appeals Control and Locator System (VACOLS) shows these issues are part of a separate appeal stream and indicates that the Agency of Original Jurisdiction (AOJ) may still be taking action on them as they remain in advance certification status.  In addition, an appeal has been perfected for an issue related to payment of attorney fees, but not yet certified to the Board.  See VA Form, dated July 11, 2017.  So, the Board will not accept jurisdiction over any these issues and they will be the subject of a later decision.  
The record also reflects that the Veteran had submitted a timely notice of disagreement (NOD) with respect to an April 2016 determination that granted an earlier effective date for service connection for a mood disorder and a December 2016 determination that granted total disability rating based upon individual unemployability (TDIU) and continued a 30 percent disability rating for left shoulder disability.  See VA Form 21-0958, dated December 27, 2016.  The record shows that receipt of the NOD has been acknowledged by the RO in VACOLS and that the RO is actively working on these appeals.  Therefore, the Board is not taking jurisdiction over these issues just to remand for a statement of the case and they too will be the subject of a later Board decision, if ultimately necessary.
In this case, 38 U.S.C. 5103(a)-compliant notice was provided in August 2007.  The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim, including with respect to VA examinations.  He has not identified any deficiency in VA’s notice or assistance duties.  Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015).
The Veteran is seeking a higher disability rating for his service-connected mood disorder.
Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity.  38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018).  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 will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 
The Veteran’s entire history is considered when assigning disability ratings.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A review of the recorded history of a disability is necessary in order to make an accurate rating.  38 C.F.R. §§ 4.2, 4.41.  The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue.  Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999).  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).
Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for 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 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 9435.
A 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships.  Id.
A 70 percent rating 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 rating is warranted if 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.
When determining the appropriate disability evaluation under the general rating formula, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact the Veteran’s occupational and social impairment.  Vazquez-Claudio v. Shinseki, 713 F.3d 112 (2013); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  Because the use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating.  Mauerhan, 16 Vet. App. at 442; Sellers v. Principi, 372 F. 3d 1318, 1326-27 (Fed. Cir. 2004).  Nevertheless, as all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be due to those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.  Vazquez-Claudio, 713 F.3d 112.
The classification outlined in the portion of VA’s Schedule for Rating Disabilities that addresses service-connected psychiatric disabilities is based upon the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, of the American Psychiatric Association (DSM-5).  38 C.F.R. § 4.130.  VA implemented DSM-5, effective August 4, 2014.  The Secretary of VA, however, has determined that DSM-V does not apply to claims certified to the Board prior to August 4, 2014.  See 79 Fed. Reg. 45,093, 45,094 (Aug. 4, 2014).  The AOJ initially certified the Veteran’s appeal to the Board in December 2015.  Therefore, the DSM-V is pertinent to this appeal.
Evidence relevant to the severity of the Veteran’s service-connected mood disorder includes include VA treatment records which show he attended several individual therapy sessions in 2009 after having recently been released from prison.  At that time his principal symptoms were anxiety and depression due to back pain and unemployment.  He complained about his inability to get along with others, and that his temper gets him into trouble.  However, he reported a good relationship with his wife and that his marriage appeared sound.  He also had good relationships with his two teenage children and two adult children.  He reported enjoying several activities, but that it was hard to do some things due to the financial stress of not working.  The Veteran was adjusting to being out of prison and motivated in his job search, but was limited by back pain and concerned about his ability to get along with people.  He did not report suicidal or homicidal ideation.  Subsequent entries document the Veteran’s history of multiple arrests for domestic violence, fighting, selling drugs, not paying fines, and probation violation.  They also show that he began taking HVAC classes and was doing well.  The diagnoses included mood disorder, personality disorder, and history of substantial polysubstance dependence. 
When examined by VA in October 2012, the Veteran’s previous diagnoses of depressive disorder and personality disorder were confirmed.  The examiner found his irritability, anxiety, insomnia, and guilt could be attributed to depression and the anger and poor impulse control is due to the personality disorder.  After reviewing the claims file, the Veteran’s self-reported medical history, current symptoms, and psychological test results, the examiner concluded the Veteran’s depressive disorder symptoms were not severe enough either to interfere with occupational and social functioning or to require continuous medication.  
In August 2013, a private psychiatrist completed a Mental Disorders Disability Benefits Questionnaire (DBQ).  She reviewed the Veteran’s claims file and interviewed him over the phone, following which she diagnosed mood disorder secondary to chronic shoulder pain.  She reported that the Veteran had extreme anger issues, struggled with frequent mood swings, and impulsivity.  He was physically and verbally aggressive and knew his incendiary anger and mood swings drove others away and he was lonely.  He reported suicidal ideation, but no plan or intent.  He reported being stressed, worried, socially isolated, unhappy, on-edge, vigilant, and highly paranoid.  He purposefully avoided others because of his aggressiveness.  He attributed the increase in psychiatric problems to his chronic shoulder pain.  In a supplemental opinion, the psychiatrist noted that due to the emergence of more complex troubling mood symptoms, including frequent suicidal ideation, the Veteran’s disorder was most closely manifested by occupational and social impairment with deficiencies in most areas such as work school family relations judgment thinking or mood difficulty.
Because the symptoms reported on the 2013 DBQ did not reflect the level of severity of symptoms reported during the 2012 VA examination, or the Veteran’s VA treatment records, a new VA examination was requested.  The examiner was asked to review both examination reports and comment on the conflicting evidence.  When examined by VA in March 2014 VA examination, the examiner made diagnoses of unspecified depressive disorder, unspecified personality disorder.  After reviewing the Veteran’s claims file, his self-reported medical history, current symptoms, psychological test results, and the conflicting evidence from the medical opinions in 2012 and 2013, the examiner concluded the Veteran’s symptoms of depression and anxiety were not at a clinically significant level of impairment and were not severe enough either to interfere with occupational and social functioning.  Although the examiner noted that there was a considerable degree of overlap between mood disorders and personality disorders, he found the Veteran’s history of aggressiveness, failure to conform with social norms (incarcerations), and low tolerance for negative affect were consistent with an unspecified personality disorder.  
Referring to the 2012 psychological test results, the examiner noted that the Veteran’s response pattern resulted in a high likelihood of exaggeration to a degree that detracts markedly from the validity of the clinical scale outcomes.  Given this threat to the validity, the results were not incorporated into the report.  In comparing the findings between the 2013 private DBQ and the 2012 VA examination report, the examiner found the largest discrepancies were in the descriptions of psychopathology and resulting impairment.  Rather, the Veteran’s presentation during the current examination was consistent with what was described in 2012.  Although he had some thoughts such as “maybe it would be better if I were not here,” the Veteran denied ever having any active thoughts of suicide.  This is in stark contrast to the 2013 private psychiatrist’s report, where she described him as having a daily distress, with a high level of paranoia, suicidal ideation, compulsive behaviors, and extreme anger issues.  In general, the examiner was unclear as to how the private psychiatrist formed her opinions since her description of impairment was well beyond that described by the Veteran in the current exam.  While the Veteran may have endorsed these symptoms to her, the evidence does not support this degree of pathology.  Even with the indication from psychological testing results that the Veteran was exaggerating his problems, he did not describe himself as impaired as the private psychiatrist did in her report.  
When examined by VA in May 2015 VA examination, the Veteran noted little change in his personal history since his last evaluation in 2014.  The examiner made diagnoses of unspecified depressive disorder, unspecified personality disorder and cannabis use disorder, which he concluded together were most closely manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.  Noted symptomatology included depressed mood, sexual addiction, per treatment records, poor decision making, and illicit drug use.  The examiner could not differentiate what portion of each symptom is attributable to each diagnosis because the Veteran presented with multiple mental health issues that include substance use as well as a sexual addiction which is not recognized as a mental disorder in the DSM-5.  Moreover, because of potential symptom overlap among the disorders, parsing out symptoms due to each is not feasible. 
However, the examiner noted that it was possible to differentiate what portion of the occupational and social impairment is caused by each mental disorder.  He noted that the unspecified depressive disorder, specific to his shoulder pain, continued to be of minimal impairment and not significant enough to interfere in functioning.  The cannabis use disorder also results in limited impairment as the Veteran perceives the use to be beneficial, but acknowledges he is over reliant.  It is also difficult to assess how the moods are impacted by daily marijuana use, as they may serve to improve the moods when using, but worsen the moods when not.  The examiner found the Veteran’s current impairment was more specific to the unspecified personality disorder, which includes the strained interpersonal relationships, legal problems by history, labile moods, and poor coping skills.
In a detailed and comprehensive VA opinion, the examiner noted that previous examiners attributed all of the Veteran’s mental health problems as mood related secondary to his shoulder/pain issues.  However, the records over several years indicate the presence of a maladaptive personality that is a likely source of some of his symptoms and impairment.  Additionally, the Veteran’s substance use, past legal problems, sexual addiction, and other various life stressors have not been considered as sources of mood dysregulation in the previous assessment, therefore it is misleading to say that all of his moods are solely due to his shoulder condition.  Although previous reports suggest a significant problem with suicidal ideation, VA treatment records do not reflect such issues or the level of severity indicated in the private report.  Regardless, current functioning specific to the mental health diagnoses alone continues to be in the mild range, as the Veteran’s main focus is on the physical pain and other situational life stressors that are not related to the service-connected condition.  
When examined by VA in August 2016 VA examination, the Veteran noted little change in his personal history since his last evaluation in 2015.  Based on his self-report and a records review, the examiner found the Veteran continued to meet DSM-5 criteria for cannabis use disorder.  Unspecified personality disorder was also continued given the Veteran’s pervasive and inflexible pattern of interpersonal functioning and affectivity.  The examiner also found that while substance use diagnostically overshadows any further clinical impressions, especially pertaining to a depressive disorder, the benefit of the doubt was nonetheless given to the Veteran considering he was already service connected for a mood disorder.  Hence, the unspecified depressive disorder was likewise continued.  Noted symptomatology included depressed mood and chronic sleep impairment.  However, attempting to tease apart which symptom is attributed to which diagnosis as well as related impairment was not possible without resulting in mere speculation given overlapping symptomatology.  Therefore, Veteran’s overall mental health condition appears mild in severity and likely results in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks.
The examiner opined that despite his impairment, the Veteran presented with notable strengths including his ability to maintain 23 years of marriage and continued important social relationships.  The examiner acknowledged the Veteran’s sporadic employment history, but stated that factors other than his mental health, such as legal history, substance abuse, and physical pain, likely interfere with his functional impairment.  In addition, the Veteran’s depression symptoms were considered mild and therefore, depressive disorder would only mildly impair his ability to work in either sedentary or physical employment settings due to his irritability, anhedonia, social avoidance, and sleep disturbance.  
Applying the psychiatric symptomatology to the rating criteria noted above, the Veteran’s mood disorder does not more nearly approximate the criteria for a 50 percent or higher rating.  The foregoing evidence shows that since service connection was established for mood disorder, it has been manifested, primarily by a depressed mood, anxiety, irritability, and insomnia.  There has been little change in those symptoms, either by the Veteran’s report or on examination. The Veteran has interpersonal difficulties due to his PTSD, but continues to have generally positive and supportive family relationships.  Further, the most recent VA examiners specifically found that the Veteran’s mood disorder symptoms caused at most only occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks, consistent with the criteria for no more than a 30 percent disability rating.  
Accordingly, the Board finds that the Veteran’s impairment due to mood disorder is most consistent with a 30 percent rating and that the level of disability to support the assignment of a 50 percent rating or higher is absent.

 
THOMAS H. O'SHAY
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	J.R. Bryant 

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