DEPRESSIVE DISORDER

Summary

The Veteran, who served from April 1984 to April 2004, appeals the denial of an increased rating for his depressive disorder. The Veteran sought an initial rating in excess of 50 percent prior to October 20, 2020, and in excess of 70 percent thereafter. The Board reviewed evidence including a January 2020 private psychiatric DBQ from Dr. J.I., a February 2020 VA examination, VA treatment records from March 2020 through February 2021, and a January 2021 private psychiatric DBQ from Dr. M.T. Dr. J.I. and Dr. M.T. opined that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas, consistent with a 70 percent rating. The February 2020 VA examiner found symptoms consistent with a 50 percent rating, citing reduced reliability and productivity. The Board considered the totality of the Veteran's symptoms, including depressed mood, anxiety, sleep impairment, memory issues, flattened affect, and difficulty with social and work relationships. Resolving all reasonable doubt in the Veteran's favor, the Board found the symptomatology consistent with a 70 percent rating for the entire appeal period. The Board determined that the Veteran's condition did not rise to the level of total occupational and social impairment required for a 100 percent rating, citing continued employment and social interactions. Service connection for depressive disorder is granted at 70 percent.

Rationale

Resolving all reasonable doubt in favor of the Veteran; Symptomatology consistent with 70 percent rating criteria; Deficiencies in most areas of occupational and social impairment

Full Decision Text

Citation Nr: A26039237
Decision Date: 04/28/26	Archive Date: 04/28/26

DOCKET NO. 210503-156822
DATE: April 28, 2026

ORDER

An initial rating of 70 percent for depressive disorder due to another medical condition, with mixed features, (depressive disorder) is granted, subject to the laws and regulations governing the payment of monetary awards.

FINDING OF FACT

Resolving all reasonable doubt in favor of the Veteran, for the entire appeal period, his depressive disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe symptomatology more nearly approximating total occupational and social impairments.  

CONCLUSION OF LAW

The criteria for an initial rating of 70 percent for depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9435.

REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Veteran served on active duty from April 1984 to April 2004.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in February 2021 by a Department of Veterans Affairs (VA) Regional Office under the modernized appeals system known as the Appeals Modernization Act (AMA).  In May 2021, the Veteran timely appealed such rating decision by filing a Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182) and requested a Board hearing. In April 2024, he was advised that such hearing was scheduled for August 5, 2024; however, he withdrew his request in a written correspondence received on July 31, 2024. 

Therefore, the Board may only consider the evidence of record at the time of the February 2021 Agency of Original Jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request.  38 C.F.R. § 20.302(b).  If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision.  38 C.F.R. §§ 20.300, 20.302(b), 20.801. 

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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 Board observes that, in a May 2021 statement, the Veteran requested that the VA Form 10182 be removed from his file. However, as such statement did not meet the legal requirements for a withdrawal of appeal as articulated at 38 C.F.R. § 20.205, the Board sought clarification in a March 2026 letter. In this regard, he was advised that, if he wished to withdraw his appeal, he must send a written, signed statement explaining that he wanted to withdraw his appeal within 30 days. However, as no statement was received from the Veteran, the Board will proceed with the adjudication of the appeal.

As a final initial matter, the Board notes that, throughout the pendency of the claim, the Veteran was represented by Dale K. Graham, an agent; however, in July 2024, an Appointment of Veterans Service Organization as Claimant's Representative (VA Form 21-22) in favor of the Dale K. Graham Veterans Foundation was received. However, as the Veteran's VA Form 10182 was received in May 2021 and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, Mr. Graham retains representation in the instant appeal. 38 C.F.R. § 20.1304(a), (b). However, the Veteran's appointment of Dale K. Graham Veterans Foundation is referred to the AOJ for appropriate action. 38 C.F.R. § 20.1304(b)(1).

Entitlement to an initial rating in excess of 50 percent prior to October 20, 202
 Form 21-22) in favor of the Dale K. Graham Veterans Foundation was received. However, as the Veteran's VA Form 10182 was received in May 2021 and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, Mr. Graham retains representation in the instant appeal. 38 C.F.R. § 20.1304(a), (b). However, the Veteran's appointment of Dale K. Graham Veterans Foundation is referred to the AOJ for appropriate action. 38 C.F.R. § 20.1304(b)(1).

Entitlement to an initial rating in excess of 50 percent prior to October 20, 2020, and in excess of 70 percent thereafter for depressive disorder.

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.  Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work.  38 C.F.R. § 4.2.  All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3.  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.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).  Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Id. 

The current appeal period begins on January 23, 2020, the date of service connection, as the Veteran has continuously pursued his claim for a higher initial rating for his depressive disorder.  38 C.F.R. § 3.2500(c).  In this regard, such disability has been rated as 50 percent disabling prior to October 20, 2020, and 70 percent disabling thereafter pursuant to DC 9435, which provides that such disability is evaluated under the General Rating Formula for Mental Disorders (General Rating Formula).  38 C.F.R. § 4.130.  In this regard, the Board notes that subsequent to the Veteran's appeal of the February 2021 rating decision, a May 2021 rating decision awarded an increased rating of 70 percent for his psychiatric disability as of October 20, 2020.  As such effective date was awarded during the instant appeal period, the Board has considered the propriety of such rating herein to the extent that it pertains to the instant appeal period.  

Under the General Rating Formula, a 50 percent rating is warranted where there is 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.

A 70 percent rating is warranted when there is 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 work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating is warranted when 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 ability to perform activities of daily living (including maintenance
 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 work-like setting); and inability to establish and maintain effective relationships.

A 100 percent rating is warranted when 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 ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closest relatives, own occupation, or own name.

The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating" under that regulation.  Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013).  The symptoms listed are not exhaustive, 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, 442 (2002).  In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering "not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas" - i.e., "the regulation...requires an ultimate factual conclusion as to the Veteran's level of impairment in most areas."  Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130.

When evaluating a mental disorder, the Board must consider the "frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission," and "assign an evaluation 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."  38 C.F.R. § 4.126(a).

Turning to the evidence of record, a January 2020 Disability Benefits Questionnaire (DBQ) completed by Dr. J.I., a private psychiatrist, noted that the Veteran's psychiatric symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, obsessional rituals which interfere with routine activities, and neglect of personal appearance and hygiene. 

At such time, the Veteran reported that he was married twice, with the first marriage ending due to his spouse's infidelity, but he had been married to his second spouse for 20 years with one son. He reported that he had three siblings, but had no contact with them for years. The Veteran further indicated that, after service, he worked in quality assurance for 14 years, and was currently working full-time as an inventory specialist, a position he held for the prior 2 years. At such time, he reported experiencing depressed mood, loss of interest activities, poor sleep/attention/concentration/energy/motivation, irritability, moodiness, quick-temperedness, anxiety, restlessness, self-isolation, disheveled dress and grooming with body odor, misinterpretation of speech, apathy, and anhedonia, but had good judgment, trust of others, and an ability to multi-task. Mental status examination was normal, with the exception of guardedness, with good eye contact and the denial of suicidal ideation. Based on the foregoing, Dr. J.I. found that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas, which is commensurate with a 70 percent rating under the General Rating Formula.

At a February 2020 VA examination, it was noted that the Veteran's psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene.  His mental status evaluation revealed that he was casually dressed with adequate hygiene; however, his grooming was poor (appeared disheveled and scruffy) as he presented as much older than his
 eye contact and the denial of suicidal ideation. Based on the foregoing, Dr. J.I. found that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas, which is commensurate with a 70 percent rating under the General Rating Formula.

At a February 2020 VA examination, it was noted that the Veteran's psychiatric symptoms included depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and neglect of personal appearance and hygiene.  His mental status evaluation revealed that he was casually dressed with adequate hygiene; however, his grooming was poor (appeared disheveled and scruffy) as he presented as much older than his age.  It was also noted that his memory, retrieval, and recall were within normal limits, and his speech was normal.  

Additionally, the Veteran reported that he had been married for 21 years; he and his spouse enjoyed board game, going to bingo, relaxing, talking, eating out, and taking trips together; and he assisted his spouse every weekend with her cosmetic company at trade shows.  His hobbies included watching sports and DIY projects, and he and his spouse had mutual friends with whom they enjoyed spending time.  The Veteran further reported that he currently worked as an inventory specialist for a wholesale grocery warehouse.  Here, he noted increased frustration on the job; however, he had not been written up for any performance issues.  Based on the foregoing, the February 2020 VA examiner found that the Veteran's depressive disorder resulted in occupational and social impairment with reduced reliability and productivity, which is commensurate with a 50 percent rating under the General Rating Formula.

A March 2020 VA treatment record reflects the Veteran's mental status examination was quite good, and he had normal insight.  In December 2020, it was noted that he experienced irritability while at work as he was tired of all the "stupid" people.  At such time, a mental status examination revealed that he was clean and calm, with shaggy grey hair; his speech/language was normal; his thought process and content was normal; his affect was appropriate; his insight and judgment were fair; he denied suicidal and homicidal ideation, hallucinations, and delusions; he was grossly oriented; and his memory was fair.  VA treatment records dated in January 2021 and February 2021 reflects the Veteran's report of anxiety and irritability, and he left his job, with a notation that the company had no discipline and he had trouble working with civilians who did not rise to a mediocre standard.  At such times, findings on mental status examination were the same as above in December 2020.

In a January 2021 DBQ, Dr. M.T., a private psychologist, noted that the Veteran's psychiatric symptoms included feelings of guilt, depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, to include work or a work like setting, and neglect of personal appearance and hygiene.  His mental status evaluation revealed that his attire, grooming, and hygiene were fair; and his speech and thought content were normal.  The Veteran denied suicidal and homicidal ideation, and hallucinations.  Dr. M.T. also noted that she believed that the Veteran's depressive disorder had significantly worsened.   

Additionally, the Veteran reported that he had been married for over 20 years, and the interactions with his family (especially his spouse) had been characterized by increased irritability, impatience, and frustration.  He further reported that he left his position as an inventory specialist due to his inability to move/lift boxes.  Based on the foregoing, Dr. M.T. found that the Veteran's depressive disorder resulted in occupational and social impairment with deficiencies in most areas, which is commensurate with a 70 percent rating under the General Rating Formula.

Based on the foregoing, the Board resolves all reasonable doubt in favor of the Veteran and finds that, for the entire appeal, his depressive disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating under the General Rating Formula.  In this regard, the totality of his symptomatology, to include depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, obsessional rituals which interfere with routine activities, and neglect of personal appearance and hygiene, are contemplated by such a rating
 that, for the entire appeal, his depressive disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating under the General Rating Formula.  In this regard, the totality of his symptomatology, to include depressed mood, anxiety, suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, impaired abstract thinking, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, obsessional rituals which interfere with routine activities, and neglect of personal appearance and hygiene, are contemplated by such a rating. 

Additionally, the record reflects that the Veteran has been married throughout the appeal period, but his marriage was strained at times, and, while he maintained connections with friends and participated in social events outside of the house with his spouse, to include bingo, trips, and trade shows, he also had no contact with his siblings and sought to self-isolate. Moreover, while he maintained full-time employment throughout majority of the appeal period and ultimately reported that he left due to physical limitations, he indicated that he was frustrated with his job as the company had no discipline and he had trouble working with civilians who did not rise to a mediocre standard. 

Furthermore, the February 2020 VA examiner, Dr. J.I., and Dr. M.T., who are psychologists or psychiatrists, are all medical professionals with the appropriate expertise to evaluate the nature and severity of psychiatric disabilities and considered all relevant facts in addressing the resulting occupational and social impairment of the Veteran's depressive disorder. Thus, their assessments are entitled to equal probative weight. 

Consequently, the Board resolves all reasonable doubt and finds that, for the entire appeal period, the Veteran's depressive disorder is manifested by psychiatric symptomatology resulting in occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating under the General Rating Formula.

However, at no point pertinent to the appeal period has the Veteran's depressive disorder resulted in total occupational and social impairment.  In this regard, the record fails to demonstrate the presence of any symptoms indicative of a 100 percent rating other than intermittent inability to perform activities of daily living including maintenance of minimal personal hygiene, to include gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior; persistent danger of hurting self or others, disorientation to time or place, or memory loss for names of closest relatives, own occupation, or own name.  Moreover, regardless of the classification of such symptoms, the nature, frequency, severity, and duration of them do not more nearly approximate total occupational and social impairment. 

Specifically, as indicated previously, the record reflects that the Veteran has maintained a marriage and friendships, and was employed for the majority of the appeal period before leaving due to physical limitations.  Thus, it cannot be said that his depressive disorder results in total occupational and social impairment.  Moreover, neither the February 2020 VA examiner, Dr. J.I., nor Dr. M.T. found that the Veteran's depressive disorder rises to such level of impairment.  Consequently, an initial rating in excess of 70 percent for such disability is not warranted.

The Board has also considered whether stated ratings under Fenderson, supra, are appropriate for the Veteran's service-connected depressive disorder; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted.  Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the initial rating claim adjudicated herein.  See Doucette v. Shulkin, 28 Vet. App. 366 (2017).

In reaching the foregoing decision, the Board has resolved all doubt in the Veteran's favor, which has resulted in the partial award of an initial 70 percent rating for his depressive disorder.  However, to the extent that a higher initial rating is denied herein, the Board finds that the weight of the probative evidence is against such aspect of the Veteran's claim.  Consequently, the benefit of the doubt doctrine is not applicable in such regard and his initial rating claim must otherwise be denied.  38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7.  

 

A. JAEGER

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Koria B. Stanton, 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. § 20.130