Citation Nr: 1329704 Decision Date: 09/17/13 Archive Date: 09/25/13 DOCKET NO. 09-46 576A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to a total rating by reason of individual unemployability due to service connected disability (TDIU). 2. Entitlement to an effective date earlier than September 18, 2012, for an award of a 70 percent rating for depressive disorder. REPRESENTATION Appellant represented by: Illinois Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph P. Gervasio, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1992 to July 1993. This case comes to the Board of Veterans' Appeals (Board) on appeal of a November 2008 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2013, a travel board hearing was held before the undersigned in Chicago, Illinois. A transcript of the hearing is available for review. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). By rating decision dated in October 2012, the RO granted a rating of 70 percent for depressive disorder, effective September 18, 2012. The Veteran, in correspondence dated in November 2012, submitted a notice of disagreement to the effective date of the award. As noted below, a statement of the case must be issued in response to this notice of disagreement. Manlincon v. West, 12 Vet. App. 238 (1999). The issue of earlier effective date for an award of 70 percent earlier than September 18, 2013 is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Throughout the appeal, service connection was in effect for a depressive disorder, rated 50 percent disabling until September 18, 2013; and 70 percent thereafter. 2. The Veteran has reported that she had four years of high school education. 3. At the time of her application for TDIU, she reported that she had not worked for the past 16 years; the record shows that in 2010 she worked the night shift at Green Giant. 4. Throughout the appeal, the service-connected disability, standing alone, is not shown to be of such severity as to effectively preclude all forms of substantially gainful employment. CONCLUSION OF LAW The requirements for a TDIU have not been met. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.321, 3.340, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The Veteran was advised of VA's duties to notify and assist in the development of the claim prior to the initial adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An August 2008 letter explained the evidence necessary to substantiate the claim, the evidence VA was responsible for providing, and the evidence the Veteran was responsible for providing. The Veteran has had ample opportunity to respond or supplement the record. In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). In a claim for increase, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). With regard to the duty to assist, the Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA medical examinations, most recently in October 2012. The Board finds that the opinion obtained is adequate. The opinion was provided by a qualified medical professional and were predicated on a full reading of all available records. The examiner also provided a detailed rationale for the opinion rendered. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has not challenged the adequacy of the examination obtained. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of his opinion). Accordingly, the Board finds that VA's duty to assist, including with respect to obtaining a VA examination or opinion, has been met. 38 C.F.R. § 3.159(c)(4) (2012). TDIU The Veteran contends that she is unable to obtain or retain substantially gainful employment due to her service connected disability. The record shows that service connection is currently in effective for a depressive disorder, rated 50 percent disabling until September 18, 2012, and rated 70 percent thereafter. As noted, the Veteran has claimed an earlier effective date for the award of the 70 percent rating, which will be addressed in the remand portion of this decision. In her September 2008 application for TDIU, the Veteran reported that she had four years of high school education and had not been employed for the past 16 years. During the pendency of this appeal, it was noted in treatment records that she had taken a job on the night shift at Green Giant. During her testimony before the undersigned, she again reported that she was not currently employed. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U. S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis, included by not limited to employment such as a family business or sheltered workshop. When earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor which takes his case outside of the norm. The sole fact that he is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Global Assessment of Functioning (GAF) score is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Richard v. Brown, 9 Vet. App. 266, 267 (1996). A score of 21 to 30 reflects that behavior is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriately, suicidal preoccupation) or inability to function in almost all areas (e.g., stays in bed all day, no job, home, or friends). A score of 31-40 is assigned where there is "[s]ome impairment in reality testing or communication (e.g., speech is at times illogical, obscure or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work)." DIAGNOSTIC AND STASTICAL MANUAL OF MENTAL DISORDERS (DSM-IV) 47 (4th ed. 1994). A score of 41-50 is assigned where there are "[s]erious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) OR any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job)." A score of 51-60 is appropriate where there are "[m]oderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) OR moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers." Scores ranging from 61 to 70 reflect mild symptoms (e.g., depressed mood and mile insomnia) or difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household). Id. On examination by VA in September 2008, the diagnoses were post traumatic stress disorder (PTSD); depressive disorder, not otherwise specified (NOS); and personality disorder NOS. On mental status evaluation, it was noted that the Veteran denied suicidality or homicidality and seemed to have average personal hygiene. The examiner noted that review of the records showed that her personal hygiene had recently improved. There was no significant evidence of memory loss or impairment., but she did describe difficulties with comprehension when she tried to work. She denied hallucinations, but stated that she had panic attacks at times. Speech was regular and eye contact was adequate. There was some paranoid ideation, but no overt paranoia or delusions. She was labile, alternating between being very friendly and becoming irritable and defensive. For example, she became angry when asked if she had tried to find work in the last six months and when asked about her childhood history. During the interview, she significantly minimalized childhood traumas that had been documented earlier in the records. She reported consistent feelings of depression that she rated as an 8 on a scale from 0 to 10 (10 being the worst). She stated that she had one friend, stating that she did not trust people. She reported that her sleep was now normalized. She reported long-standing difficulty with anger management. She denied periods of euphoric mood, excessive energy, or increased need for sleep suggestive of mania, hypomania, or bipolar disorder. Regarding the impact that the Veteran's service-connected depression had on her ability to perform activities consistent with work experience, the examiner noted that the Veteran was able to sleep stably, but that housing and financial situations caused great stress at this time. She described difficulty with comprehension and irritability that the examiner stated could interfere with employment, but that the lack of comprehension could not specifically be attributed to her service-connected depression. It was also noted that she had a lack of available childcare and transportation would affect her employability. A GAF score of 50 was assigned for the combination of her conditions to indicate serious symptoms and serious impairment in social, occupational, or school functioning. The examiner went on to opine that the Veteran had significant difficulty in realms of functioning that were attributable to a personality disorder that at least as likely as not contributed to her reported difficulty finding and keeping work. An examination was conducted by VA in September 2009. At that time, current complaints were of depression, which she reported had been stabilized somewhat with her medication. She reported nightmares related to worrying about her children, who had been placed in foster care. She denied suicidality or psychotic symptoms and reported that her depressive symptoms had improved, but had worsened after he children were taken from her. She stated that her symptoms of depression rated a 10 on a scale from 0 to 10. On mental status examination, she arrived over 30 minutes late, stating that she had driven herself, which was an accomplishment as she seldom drove outside of Rockford. Thought processes were linear. Mood was depressed. She became tearful when discussing her children. She reported that she did not have any specific plans or intent to harm others, but it was noted in the record that she had made threats to staff. She was able to maintain hygiene and complete all activities of daily living without assistance. She did not report recent panic attacks. She reported severe depression since June when her children were placed in foster care, which indicated that this was largely situational in nature. Insight and judgment seemed limited. She reported improvement in impulse control with her medication. She reported that she was presently sleeping adequately. The diagnose were depressive disorder, NOS; PTSD; and personality disorder, NOS. Her GAF score was continued at 50, indicating ongoing serious symptoms with regard to occupational impairment. The examiner noted that the Veteran also exhibited a personality disorder and PTSD that contributed to her overall disability level and which were not relatable to service. It was also noted that the Veteran's depression could significantly improve if she were to regain custody of her children. Private and VA treatment records show that the Veteran receives regular outpatient treatment. In a November 2009 report, a private therapist stated that the Veteran continued to present symptoms of depression and anxiety and did not always complete her hygiene on a daily basis. She also reported extended sleep problems and thought process was easily distracted. She jumped from idea to idea and struggled to stay focused. It was noted that her anxiety often sabotaged her interactions with others and became defensive when she viewed the behavior of others as "attacking." She had verbally lashed out and was recently arrested for destruction of property when she viewed the security as ignoring her and viewing her as inferior. Her paranoia that others were being disrespectful and talking down to her had resulted in verbal attacks toward her state caseworkers. In a private treatment report dated in February 2010, it was reported that she had recently been hired by Green Giant for the night shift and was to begin at the beginning of March. She also indicated that she was interested in obtaining vocational rehabilitation through VA. It was noted that she had been consistent and reliable in her attendance in weekly therapy sessions. The diagnoses were Cannabis dependence, alcohol dependence, PTSD, major depressive disorder, panic disorder, borderline personality disorder traits and paranoid personality traits. The GAF score was listed as 45. VA treatment records dated in November 2011 show that she had been hired by MovieFacts for whom she would be starting her new job on Monday. It was noted that she had had to cancel her therapy appointment due to a work conflict. An examination was conducted by VA in December 2011. At that time, the diagnosis was depression, NOS. There were also strong suggestions of a personality disorder. Her GAF score was listed as 55 to 60, representing mild to moderate impairment. The examiner commented that her depression appeared to be fairly stable. Her level of occupational and social impairment was summarized as having occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning was satisfactory, with normal routine behavior, self-care, and conversation. Regarding employment she stated that she had lost worked as a telemarketer for two days around Thanksgiving. She reported no other work since service, but it was noted that this was inconsistent with documents in her claims folder. She stated that she was looking for work and was focused on trying to get her kids back from foster care. Recent outpatient treatment notes showed GAF scores of 65. Symptoms of depressed mood, anxiety, chronic sleep impairment, memory loss, disturbances of motivation and mood, and suicidal ideation. In the examiners opinion, the Veteran's depression was of mild to moderate severity with a GAF score between 55 and 60. This did not render the Veteran unable to secure or maintain substantially gainful employment. On October 2012 VA examination, the diagnosis was depressive disorder, NOS. When asked about symptoms, the Veteran responded that everything had worsened. She was only sleeping one hour per night, had chronic thoughts that she would not have to suffer anymore if "I weren't here any more." She reported her depression as 10/10. It was noted that she endorsed all symptoms, including some that were indications of an exaggeration of symptoms. Her GAF score was 55. The examiner summarized her level of occupational and social impairment as having reduced reliability and productivity. Symptoms included depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships and in adapting to stressful circumstances, and suicidal ideation. The examiner related an inability to find any objective evidence to suggest that the Veteran's service-connected condition had worsened significantly since her last evaluation in December 2011. She reported continued difficulty with motivation and getting out of bed, depressed mood, sleep impairment, and chronic passive suicidal ideations. She was capable of abstract thinking. After review of the record, the Board finds that throughout the appeal, the Veteran's service-connected disability, standing alone, is not shown to be of such severity as to effectively preclude all forms of substantially gainful employment. In this regard, it is noted that the record shows that the Veteran was able to find employment intermittently during this appeal period. Her GAF levels were rated between 50 and 60 with the examiners describing her symptoms as causing occasional decreases in work efficiency or, on latest evaluation, reduced reliability and productivity. The examiners have not indicated that she has total occupational and social impairment. Moreover, some of the impairment is associated with her diagnosed personality disorder and PTSD that have not been associated with service. Overall, the Board does not find that the Veteran's disability picture reflects factors that take her case outside of the norm. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for TDIU, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER TDIU is denied. REMAND In addition to the claim for TDIU, the Veteran has submitted a Notice of Disagreement with the effective date awarded in an October 2012 rating decision that increased the evaluation of her depressive disorder to 70 percent disabling. The Effective date of increase was September 18, 2012. As a consequence, she sought to appeal the effective date. To date, he has not received an SOC related to this issue, so this claim must be remanded for compliance with Manlincon. See Manlincon, 12 Vet. App. 238. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) The Veteran must be provided a Statement of the Case (SOC) on the issues of entitlement to an effective date earlier than September 18, 2012, for an award of a 70 percent rating for a depressive disorder. If, and only if, the Veteran files a timely substantive appeal should this issue be returned to the Board. See 38 C.F.R. § 19.29; Manlincon, 12 Vet. App. 238. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs