DEPRESSION

LESLEY A. REIN · 2026 · Case ID: A26028718

GRANTED

Summary

The Veteran, a Veteran who served from June 2011 to June 2015, appeals the denial of an increased disability evaluation for depression. The Veteran sought a 70 percent rating for the period of February 7, 2023, to February 25, 2024, arguing that his symptoms did not improve and continued to cause significant occupational and social impairment. The Board reviewed the evidence of record from the time of the prior rating decision, including a February 2023 VA examination and a February 2024 private examination. The VA examiner opined that the Veteran's symptoms most nearly approximated mild or transient impairment, but this opinion lacked justification and failed to address the Veteran's reported job loss and continuous symptoms. In contrast, the private examiner competently and credibly opined that the Veteran experienced sustained severe impairment, including suicidal ideation, social isolation, divorce, and job loss, consistent with the Veteran's statements and other evidence. The Board found the private opinion more probative and concluded that the Veteran's depression symptoms caused occupational and social impairment in most areas throughout the period in question. Therefore, the Board granted a 70 percent disability evaluation for depression for the specified period, finding that the evidence persuasively weighed in favor of this rating.

Rationale

AOJ relied on finding of improvement for 50% rating.; Veteran's statements of no improvement are credible and supported by private exam.; Private exam found sustained severe impairment.

Special Benefit

NO SPECIAL BENEFIT

Diagnostic Code

9435

Docket No.

251112-606698

Full Decision Text

Citation Nr: A26028718
Decision Date: 03/31/26 Archive Date: 03/31/26

DOCKET NO. 251112-606698
DATE: March 31, 2026

ORDER

For the period from February 7, 2023 to February 25, 2024, an increased disability evaluation of 70 percent, but no more, for depression is granted.

FINDING OF FACT

For the period from February 7, 2023 to February 25, 2024, the severity, frequency, and duration of the Veteran's symptoms most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

CONCLUSION OF LAW

For the period from February 7, 2023 to February 25, 2024, the criteria for a disability rating of 70 percent, but no more, for depression have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 2011 to June 2015.

In August 2024, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2024 rating decision. In November 2024, the agency of original jurisdiction (AOJ) issued the HLR rating decision on appeal, which considered the evidence of record at the time of the prior May 2024 rating decision. In the November 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2024 AOJ rating decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301.

Evidence was submitted during the period after the AOJ issued the May 2024 decision, which was subsequently subject to higher-level review. The Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

The Veteran and his attorney dispute the accuracy of the February 2023 VA mental disorders examination. Because the relief requested by the Veteran and his attorney, a 70 percent disability evaluation for the period from February 7, 2023 to February 25, 2024, is granted in full below, the Board need not reach this issue.

Neither the Veteran nor his attorney have raised any other issues with the duty to notify or duty to assist that occurred prior to the rating decision on appeal. 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).

For the period from February 7, 2023 to February 25, 2024, an increased disability evaluation of 70 percent, but no more, for depression is granted.

The Veteran and his attorney assert that a 70 percent disability evaluation is warranted throughout the entire appeal period and that the 50 percent rating in effect from February 7, 2023, to February 26, 2024 is not reflective of the Veteran's symptoms during that time. See November 2025 Notice of Disagreement. They do not request a 100 percent disability evaluation for any portion of the period of service connection. See id.

As an initial matter, the Board must determine which issues are on appeal. Here, the Board concludes that the only issue on appeal is entitlement to an increased disability
2024, an increased disability evaluation of 70 percent, but no more, for depression is granted.

As an initial matter, the Board must determine which issues are on appeal. Here, the Board concludes that the only issue on appeal is entitlement to an increased disability evaluation for service-connected depression for the period from February 7, 2023 to February 25, 2024.

In the November 2025 Notice of Disagreement, the Veteran, through his attorney, appealed only the disability evaluation for depression as decided in the November 2024 rating decision. Specifically, the Veteran and his attorney requested a 70 percent disability evaluation for the period from February 7, 2023 to February 25, 2024, during which he is currently assigned a 50 percent disability evaluation. See November 2025 Notice of Disagreement. The Veteran is represented by an attorney accredited by VA. See March 2022 VA Form 21-22a. The November 2025 Notice of Disagreement did not reference the Veteran's March 2024 explicit claim for a total disability evaluation based on individual unemployability (TDIU), nor did it request review of the AOJ's denial of a TDIU in an April 2025 rating decision. Therefore, the only issue before the Board is the appropriate disability evaluation for depression. Adjudicating only this issue will not prejudice the Veteran, because the time to appeal the April 2025 rating decision denying a TDIU has not yet elapsed. Moreover, considering the increased disability evaluation for depression granted herein, the Veteran is in receipt of 100 percent combined disability evaluation for the entire period on appeal. While this itself does not moot TDIU, the Veteran's attorney argues that he has an inability to work based on multiple service-connected disabilities, which would prevent the grant of a TDIU from conferring an additional benefit on the Veteran. See August 2024 VA Form 20-0996.

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1.

When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed. Hart v. Mansfield, 21 Vet. App. 505 (2007); see also 38 U.S.C. § 5110(b)(3); 38 C.F.R. § 3.400(o)(2).

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

The benefit of the doubt rule provides that an appellant will prevail in a case where the positive evidence is in approximate balance with the negative evidence. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. It is only when the weight of the evidence is persuasively against the claim that the claim must be denied. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

The Veteran's depression is rated under Diagnostic Code 9435. Diagnostic Code 9435 is evaluated under the General Formula for Mental Disorders (General Formula). Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. 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. Then, the Board must determine whether the associated symptoms,
776 (Fed. Cir. 2021).

The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent for the period from February 7, 2023 to February 25, 2024, so that he has a continuous 70 percent disability evaluation for the entire period of service connection. See November 2025 Notice of Disagreement.

The Board concludes that the Veteran's occupational and social impairment from February 7, 2023 to February 25, 2024 most nearly approximates that of occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

Under the General Formula, a 50 percent rating is assigned when 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 (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity.

A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; 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 worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood.

A 100 percent 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; or memory loss for names of close relatives, own occupation or own name.

Currently, the Veteran's disability evaluation for depression is 70 percent from February 3, 2017; 50 percent from February 7, 2023; and 70 percent from February 26, 2024.

Turning to the relevant medical evidence, the Veteran was afforded a February 2023 VA mental disorders examination, which documented symptoms of depressed mood, anxiety, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The February 2023 VA mental disorders examiner opined that the Veteran's depression symptoms most nearly approximated 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. However, the February 2023 VA mental disorders examiner did not justify this opinion in light of the Veteran's reported job loss, relationship loss, and continuous symptoms since discharge; nor did the examiner discuss whether or how the Veteran's symptoms had improved since the September 2021 VA mental disorders examination. The Board therefore affords the opinion of the February 2023 VA mental disorders examiner regarding the severity of the Veteran's depression symptoms.

The Veteran submitted a February 2024 private medical examination, which competently and credibly opined that the Veteran's depression symptoms from February 7, 2023 to February 25, 2024 did not demonstrate substantial improvement. The February 2024 private medical examiner explained, based on a review of the relevant medical records and the Veteran's lay statements and current complaints, that the Veteran has experienced sustained severe impairment as demonstrated by suicidal ideation, social isolation, a divorce, avoidance, and being fired from the
Veteran's symptoms had improved since the September 2021 VA mental disorders examination. The Board therefore affords the opinion of the February 2023 VA mental disorders examiner regarding the severity of the Veteran's depression symptoms.

The Veteran submitted a February 2024 private medical examination, which competently and credibly opined that the Veteran's depression symptoms from February 7, 2023 to February 25, 2024 did not demonstrate substantial improvement. The February 2024 private medical examiner explained, based on a review of the relevant medical records and the Veteran's lay statements and current complaints, that the Veteran has experienced sustained severe impairment as demonstrated by suicidal ideation, social isolation, a divorce, avoidance, and being fired from the only two jobs he has had since service. The February 2024 private examiner also noted sustained difficulty if not inability to cope or regulate relatively routine stressors found across social relationships and in occupational settings, including during the period from February 7, 2023 to the date of the private examination. The opinions of the February 2024 private examiner are consistent with the Veteran's statements and the other evidence of record, including a September 2021 VA mental disorders examination. The Board therefore affords them significant probative weight.

In assigning a 50 percent evaluation for the period from February 7, 2023 to February 25, 2024, the AOJ explicitly relied on a finding of improvement. See November 2023 rating decision.

The Veteran and his attorney assert that his depression symptoms did not improve in February 2023. See November 2025 Notice of Disagreement. Instead, the Veteran states his depression symptoms most closely approximated social and occupational impairment with deficiencies in most areas from February 7, 2023 to February 25, 2024. The Veteran is competent to report his observable symptoms and their history, and his reports are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Moreover, his statements are supported by the February 2023 VA mental disorders examination, which shows he reported that his symptoms were continuing as they had since military service. At the February 2023 VA mental disorders examination, the Veteran additionally reported the recent loss of a job due to conflict with management and a complete inability to communicate with his romantic partner, with whom he had previously had an intact romantic relationship. The Board therefore affords the Veteran's statements that his depression symptoms did not improve during the period from February 7, 2023 to February 25, 2024 significant probative weight.

As discussed above, the most probative examination of record, the February 2024 private examination, indicates that the Veteran experienced occupational and social impairment in most areas continuously throughout the period from February 2023 to February 2024.

Therefore, the Board finds that, for the period from February 7, 2023 to February 25, 2024, the disability manifested as occupational and social impairment in most areas.

The Veteran does not assert, and the evidence does not show, that the Veteran had total occupational and social impairment at any point during the period on appeal.

In conclusion, the Board finds that the evidence of record persuasively weighs in favor of the Veteran's claim for a rating of 70 percent for depression for the period from February 7, 2023 to February 25, 2024.

LESLEY A. REIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board A.C.

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.

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