For the entire period on appeal, the Veteran’s unspecified depressive disorder symptoms most nearly approximated total occupational and social impairment.
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Citation Nr: A21005976 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 200407-80987 DATE: March 17, 2021 ORDER For the entire period on appeal, an initial rating of 100 percent for unspecified depressive disorder is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the entire period on appeal, the Veteran's unspecified depressive disorder symptoms most nearly approximated total occupational and social impairment. CONCLUSION OF LAW For the entire period on appeal, the criteria for an initial rating of 100 percent for unspecified depressive disorder have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9435 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from July 2014 to July 2019. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2020 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the present appeal arises from a pre-discharge claim for disability benefits. In a n August 2019 rating decision, the RO granted service connection for unspecified depressive disorder, and assigned an initial disability rating of 70 percent. New evidence, specifically a November 2019 VA Medical Center Report of Hospitalization and January 2020 Disability Benefits Questionnaire (DBQ), was received within one year from the August 2019 rating decision. Therefore, the August 2019 rating decision did not become final. Furthermore, the Board notes that the Veteran filed Supplemental Claims in January 2020 and February 2020. In the March 2020 rating decision on appeal, the RO continued the 70 percent rating for unspecified depressive disorder. In the April 2020 VA Form 10182, the Veteran requested a hearing with a Veterans Law Judge. The Veteran was provided with a virtual Board hearing in October 2020. A copy of the hearing transcript is of record. By way of background, on August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veteran's dissatisfied with VA's decision on their claim to seek review. Under the AMA, when a claimant seeks appellate review through the Board’s Hearing docket, the Board may consider the evidence of record at the time of the Agency of Original Jurisdiction (AOJ) decision on appeal, as well as evidence submitted at the hearing and within 90 days following the hearing. 38 C.F.R. § 20.302. Here, evidence was added to the claims file during a period of time when new evidence was not allowed. Such evidence was not considered by the Board in adjudicating this matter. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Entitlement to an initial rating in excess of 70 percent for unspecified depressive disorder. The Veteran is in receipt of a 70 percent initial disability rating for unspecified depressive disorder under 38 C.F.R. § 4.130, DC 9435. He seeks a higher rating. The Veteran's schizophrenic disorder is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9435. Under such formula, a 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, 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). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the bipolar disorder claim is governed by DSM 5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. After a review of the evidence, the Board resolves any reasonable doubt in the Veteran’s favor and finds that his unspecified depressive disorder symptoms have most nearly approximated total occupational and social impairment for the entire period on appeal. The evidence has consistently reflected that the Veteran has been in persistent danger of hurting himself or others for lengthy periods of time. See January 2020 VA treatment record (“he disclosed that he often thinks about hitting his head against something to crack it”); January 2020 VA treatment record (Vet reported urges to bash his head against a wall); December 2019 VA psychology telephone note (Veteran “related that he continues to have ‘urges’ to ‘bash my head against the wall’”); December 2019 VA suicide risk evaluation (“[Suicidal ideation] has decreased in frequency since hospitalization but he continues to have thoughts come up several days per week. The Veteran had suicidal intent at the time of the most recent ideation,” specifically that “he intended to bash himself in the head with a computer monitor” and “bleed out”); December 2019 VA social work note (noting that Veteran was admitted to inpatient treatment after having suicidal ideation with a plan to smash his head into his computer screen and cut himself with the glass); November 2019 VA mental health triage note (“Veteran reports his plan to hurt himself would mash his head against the wall and hopes that his face/head ‘would crack open’”); October 2019 VA nursing note (indicating suicidal ideation with viable plan); October 2019 treatment note (indicating that the Veteran was admitted for inpatient treatment for suicidal ideation, and was at the verge of bashing his head against the wall or computer monitor, when he decided to go get some help); October 2019 VA admission evaluation note (Veteran admitted to experiencing suicidal ideation with a similar plan in May 2019 while deployed to Sicily, and was hospitalized on a medical unit for one night); and September 2019 (Veteran stated that when upset he bangs his head to wall, but no active plans for suicide). He has also had persistent delusions or hallucinations. See October 2020 Board hearing transcript (reporting having hallucinations for one or two years); December 2019 VA treatment record (“when I try to fall asleep, it’s like I can hear the strong winds of a hurricane or see the curtains moving fast like a hurricane; so I have that hallucination every night”); December 2019 VA psychology telephone note (“Veteran continued to report audio hallucinations of ‘winds like in a hurricane’ and ‘the curtains moving too fast’”); November 2019 VA mental health treatment note (reporting seeing the curtains move at night due to wind, with his wife disputing this was happening); October 2019 VA treatment note (noting auditory/visual hallucinations regarding curtains moving, interpreting as hurricane winds, feelings that it would take his parents away); October 2019 VA nursing note (indicating auditory hallucinations of people calling his name); and May 2019 service treatment record (indicating that the Veteran complained of wanting to hurt himself and was treated for suicidal ideation). In addition, the Veteran has had intermittent inability to perform activities of daily living (ADLs), including maintenance of minimal personal hygiene. See October 2020 Board hearing transcript (Veteran does not comb his hair, and his wife has to persuade him to shower after a few weeks); December 2019 VA psychology telephone note (Veteran reported that he had not showered in almost three weeks); November 2019 VA mental health treatment note (reporting no personal hygiene or bathing for over one week); October 2019 VA treatment note (“prior to his [recent] hospitalization he was only showering once weekly”); and October 2019 psychiatry progress note (indicating that the Veteran had been taking a shower once a month). The evidence also indicates that the Veteran has experienced significant memory loss. See October 2020 Board hearing transcript (reporting forgetting his own name, social security number, and date of birth); November 2019 VA mental health treatment note (indicating the Veteran was unable to remember his date of birth without prompting); November 2019 VA mental health triage note (“I tell my wife that I’m going to do something which happened years ago” and “I forget where I’m at.”); and October 2019 VA treatment note (“reports forgetting his social security number and his last name recently”). Finally, the evidence reflects that the Veteran has engaged in grossly inappropriate behavior. See October 2020 Board hearing transcript (reporting that he likes to take his clothes off and walk around hiss house and yard, even where neighbors could see him); and November 2019 VA treatment record (reporting marital discord due to his behavior of “walking around the house naked, even in front of windows,” for months). Furthermore, the Board notes that in January 2020 the Veteran submitted a Mental Disorders DBQ, completed by a psychiatrist, which indicated that his mental disorders resulted in total occupational and social impairment and were characterized by symptoms of persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others (though currently no intent or plan), intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, and disorientation to time or place. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's unspecified depressive disorder symptoms more nearly approximate in total occupational and social impairment for the entire period on appeal, and as such, a 100 percent rating is warranted. Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee, 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.