Citation Nr: 1503876 Decision Date: 01/27/15 Archive Date: 02/09/15 DOCKET NO. 10-38 664 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a disability rating in excess of 50 percent for major depressive disorder prior to July 18, 2014, and entitlement to a disability rating in excess of 70 percent on and after July 18, 2014. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to July 18, 2014. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. D. Bruce, Associate Counsel INTRODUCTION The Veteran served on active duty from October 1953 to September 1956. These matters come before the Board of Veterans' Appeals (Board) on appeal from January 2009 and May 2009 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2013, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is of record. These claims were previously remanded in a January 2014 Board decision. In an October 2014 rating decision, the RO granted entitlement to a TDIU and an increased disability rating of 70 percent for major depressive disorder, effective July 18, 2014. Because the increased disability rating assigned is not the maximum rating available and a TDIU was not granted for the entire period on appeal, the claims remain in appellate status, and the Board has re-characterized the issues as shown on the title page. See AB v. Brown, 6 Vet. App. 35 (1993); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2014). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's major depressive disorder resulted in occupational and social impairment with deficiencies in most areas. 2. Throughout the period on appeal, the evidence demonstrates that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Throughout the period on appeal, the criteria for a disability rating of 70 percent, but not higher, for major depressive disorder have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434 (2014). 2. Throughout the period on appeal, the criteria for a TDIU have been met. 38 U.S.C.A. §§ 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2014). While a February 2009 notice letter incorrectly stated the criteria for establishing a TDIU on an extraschedular basis, this notice was corrected in a March 2014 notice letter pursuant to the Board's January 2014 remand. The March 2014 letter, along with a November 2008 letter, satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The record contains the Veteran's service treatment records, VA treatment records and examination reports, and lay evidence. The Veteran underwent VA examination in connection with his increased disability rating claim for major depressive disorder in December 2008, June 2010, and July 2014. Upon review, the Board finds the VA examinations sufficient and adequate for rating the disability on appeal. The VA examiners reviewed the medical evidence and the Veteran's lay statements and performed examinations. Additionally, the examinations provided sufficient information to rate the service-connected disability on appeal. 38 C.F.R. § 3.159(c)(4); Barr v Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). Additionally, the Board finds the Appeals Management Center substantially complied with the January 2014 remand directives with respect to the issues on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims held that 38 C.F.R. § 3.103(c)(2) (2014) requires that the VLJ who conducts a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the December 2013 Travel Board hearing, the VLJ noted the elements that were lacking to substantiate the claims of entitlement to a TDIU and to an increased disability rating for major depressive disorder. The VLJ asked questions to ascertain the current level of the Veteran's service-connected disabilities. The hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he understood the elements necessary to substantiate his claims. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). There is no indication in the record that any additional evidence relevant to the issues is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). The Board has thoroughly reviewed all of the evidence in the Veteran's claims file. Although an obligation to provide sufficient reasons and bases in support of an appellate decision exists, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the entire record must be reviewed, but each piece of evidence does not have to be discussed). The analysis in this decision focuses on the most salient and relevant evidence and on what the evidence shows or fails to show with respect to the matters on appeal. The Veteran should not assume that pieces of evidence, not explicitly discussed herein, have been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Major Depressive Disorder Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2014). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule but findings sufficient to identify the disease and the resulting disability, and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2014); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). The primary concern for an increased rating for a service-connected disability is the level of disability during the period on appeal. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over findings during the period on appeal. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In all claims for an increased disability rating, VA has a duty to consider the possibility of assigning staged ratings. See Hart, 21 Vet. App. 505 (2007). Considerations in evaluating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The evaluation must be based on all the evidence that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a) (2014). Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). According to the Diagnostic and Statistical Manual of Mental Disorders, Fourth edition (DSM-IV), a global assessment of functioning (GAF) score reflects the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." DSM-IV, American Psychiatric Association (1994), pp. 46-47; 38 C.F.R. §§ 4.125(a), 4.130 (2014). A GAF score of 31-40 indicates some 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; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF score of 41-50 indicates serious 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 GAF score of 51-60 represents moderate 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). A GAF score of 61-70 indicates some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. The Veteran's service-connected major depressive disorder has been rated under the provisions of 38 C.F.R. § 4.130, Diagnostic Code 9434, which provides: A 50 percent disability rating is warranted when the Veteran experiences 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 disability rating is warranted when the Veteran experiences 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 disability rating is warranted 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 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. 38 C.F.R. § 4.130. The Veteran's service-connected major depressive disorder is rated as 50 percent disabling prior to July 18, 2014. Therefore, to warrant a higher disability rating, the evidence must show occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, or meet the criteria for a 100 percent rating. His service-connected major depressive disorder is rated as 70 percent disabling on and after July 18, 2014. Therefore, to warrant a higher disability rating on and after July 18, 2014, the evidence would have to show total occupational and social impairment. The Veteran underwent VA examination in connection with his claim in December 2008. He reported that he felt depressed almost every day, with some days of moderate depression and some days of severe depression. He stated that the more his general health condition deteriorated, the less he could do to distract himself from his pain. He felt a loss of interest all of the time and a desire to isolate himself. The Veteran reported frequent suicidal ideation two to three times per week, but felt that he would not commit suicide due to his Catholic faith. He stated that he felt hopeless and that things were continually getting worse for him. He reported having panic attacks once or twice a month, as well as a lot of trouble sleeping. The VA examiner noted that the Veteran's mood was depressed and that he had decreased energy. The VA examiner assigned a GAF score of 50. In a January 2009 written statement, the Veteran reiterated that he had suicidal ideation a few times a week. He stated that he felt his condition prevented him from functioning, and that he suffered from reduced reliability and productivity. He reported feeling no interest in anything and having no energy. The Veteran also related comments from his psychiatrist indicating that he was unable to sustain attention for an extended period or to adapt to stressful circumstances. He also reported having difficulty maintaining effective work and social relationships. In a May 2009 written statement, the Veteran stated that the severity of his major depressive disorder often led him to neglect his personal appearance and hygiene. He also reported that his condition had made it difficult to maintain his former profession as a bartender due to the fact that he could not act friendly toward the people in the bar. The Veteran again underwent VA examination in June 2010. The Veteran reported severe depression most days, with low motivation to do anything. He stated that he still had frequent suicidal ideation and thoughts of not wanting to live. He also reported experiencing severe panic attacks about once per week and difficulty sleeping. The VA examiner noted that the Veteran had retired in 2004 partially because he was having trouble concentrating at work. The VA examiner assigned a GAF score of 50. The examiner further noted that the Veteran had deficiencies in the areas of work and mood and had relationship problems. In September 2010, the Veteran's psychiatrist, Dr. S. Rikhy, provided a written statement indicating that the Veteran experienced severe depressive symptoms and that he had tried several medications with no success. Also in September 2010, the Veteran reported in a written statement that he felt his depression was worsening and that it prevented him from working. In July 2013, the Veteran testified that he had trouble concentrating. He also reported that he had a lot of trouble sleeping because he would just lay there thinking about his existence and why he was still here. He stated that he was irritable and easily upset and experienced occasional panic attacks. The Veteran again underwent VA examination in July 2014. The VA examiner opined that the Veteran had occupational and social impairment with deficiencies in most areas. The VA examiner noted that because of his service-connected major depressive disorder the Veteran experienced depression, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation. Here, the Board finds the evidence demonstrates that throughout the period on appeal, the Veteran's major depressive disorder resulted in occupational and social impairment with deficiencies in most areas. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.130, Diagnostic Code 9434. Initially, the Board notes the Veteran experienced symptoms that are not listed in the rating criteria, and as a result, the Board has considered many of the Veteran's symptoms as "like or similar to" the schedular rating criteria of occupational and social impairment with deficiencies in most areas. See Mauerhan, 16 Vet. App. 436. The Board finds it pertinent that, throughout the period on appeal, the Veteran received psychiatric treatment through VA and consulted with a VA social worker. The evidence demonstrates that the Veteran's major depressive disorder was manifested during this period by a depressed mood, anxiety, irritability, poor concentration, panic attacks, trouble sleeping, crying spells, withdrawal, difficulty with social and work relationships, and suicidal ideation. He often reported a lack of interest and motivation as well as feelings of boredom and anhedonia. Particularly in sessions with his VA social worker, the Veteran expressed thoughts about suicide and wishing he were dead. In the records, it was continually noted that the Veteran had undergone several medication trials with no significant improvements. He noted that he could feel himself withdrawing even though he enjoyed spending time with friends. Further, the VA examiner in June 2010 found the Veteran had deficiencies in work and mood, as well as difficulty with relationships. The VA examiner in July 2014 opined that the Veteran had deficiencies in most areas. Finally, clinicians assigned GAF scores ranging in large part from 50 to 60 during the period on appeal, indicating a range of serious to moderate difficulty in social or occupational functioning. As a result, the Board concludes that the evidence as a whole more nearly approximates the criteria for a disability rating of 70 percent throughout the pendency of the appeal. 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434; see Hart, 21 Vet. App. 505. Here, however, the evidence does not show total occupational and social impairment at any time during the pendency of the appeal, 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, disorientation to time or place, or memory loss for names of close relatives, own occupation or own name. Though the Veteran does have deficiencies in social relationships, he reports that he frequently sees his friends and takes pleasure in doing so. Additionally, although the Veteran reported experiencing frequent suicidal ideation, he also repeatedly expressed that he would never act on such thoughts due to his faith and that he had taken steps to prevent suicide, such as removing the guns from his home. VA clinicians noted throughout the period on appeal that the Veteran was well-groomed and otherwise able to cope with the activities of daily living. For these reasons, the Board finds the criteria for a disability rating in excess of 70 percent for major depressive disorder have not been met at any time during the pendency of the appeal. 38 C.F.R. § 4.130. Resolving the benefit of the doubt in favor of the Veteran, the Board finds the criteria for a disability rating of 70 percent, but no more, for major depressive disorder have been met prior to July 18, 2014. See 38 C.F.R. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). However, the criteria for a disability rating in excess of 70 percent have not been met at any time during the pendency of the appeal. Extraschedular Consideration Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. Here, the Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the rating assigned for this period inadequate. The Veteran's service-connected major depressive disorder is evaluated as a psychiatric disability, the criteria of which is found by the Board to specifically contemplate the level of occupational and social impairment caused by this disability. Thun, 22 Vet. App. at 115; see also 38 C.F.R. § 4.130, Diagnostic Code 9434. During the period on appeal, the Veteran's major depressive disorder was manifested by symptoms of depressed mood, anxiety, irritability, poor concentration, panic attacks, trouble sleeping, crying spells, withdrawal, difficulty with social and work relationships, and suicidal ideation. When comparing this disability picture with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's experiences are contemplated by the evaluation assigned for this period. Evaluations in excess of that assigned are provided for certain manifestations of a psychiatric disability, but the medical evidence does not demonstrate that those manifestations are present in this case. Here, the Board finds that the criteria for the evaluation assigned more than reasonably describes the Veteran's disability level and symptomatology during this period, and therefore, the schedular evaluation is adequate, and no referral is required. See 38 C.F.R. § 4.130, Diagnostic Code 9434; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996). Finally, the Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. TDIU Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16(b). Factors such as employment history, as well as educational and vocational attainments, should be considered. Id. For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word substantially suggests intent to impart flexibility into a determination of a veteran's overall employability, as opposed to requiring the veteran to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities; provided that, if there is only one such disability, this disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a); see also 38 C.F.R. §§ 3.340, 3.341. For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. 38 C.F.R. § 4.16(a). As the Veteran now has a service-connected disability rated at 70 percent, the schedular criteria are met prior to July 18, 2014. Throughout the period on appeal, the Veteran has reported that he has been unable to work at all since 2004 due to his service-connected major depressive disorder and lumbosacral strain with degenerative changes. The Veteran had previously been employed as a bartender for many years. In the December 2008 VA examination report, the VA examiner noted that the Veteran had retired due to degenerative lumbar issues. In a January 2009 written statement, the Veteran indicated that he had reduced reliability and productivity due to his major depressive disorder, and that he had difficulty adapting to stressful circumstances and maintaining effective work relationships. A February 2009 letter from the Veteran's former employer indicated that the Veteran had been forced to retire due to his disabilities because he was unable to perform his duties as he had done in the past. In a June 2009 written statement, the Veteran asserted that his major depressive disorder kept him from functioning professionally. He related difficulty maintaining friendly relations with people in the bar where he worked. Additionally, he stated that his lower back condition affected his mobility. In the June 2010 VA examination report, the VA examiner noted that the Veteran had deficiencies in the area of work due to his major depressive disorder, including concentration problems and difficulties socializing in the role of bartender. Finally, the July 2014 VA examiner noted that the Veteran's two service-connected disabilities combined prevented him from obtaining employment. Upon review, the Board finds significant the statements from the Veteran and his former employer that he was unable to work due to his service-connected disabilities. The Board also assigns significant probative weight to the opinions of the June 2010 and July 2014 VA examiners that the Veteran's disabilities caused occupational impairment. Therefore, resolving the benefit of the doubt in favor of the Veteran, the Board finds the evidence demonstrates that the Veteran's service-connected major depressive disorder and lumbosacral strain rendered him unable to secure or follow a substantially gainful occupation throughout the period on appeal and TDIU is warranted throughout the period on appeal. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. ORDER Entitlement to a disability rating of 70 percent, but not higher, for major depressive disorder throughout the period on appeal is granted. Entitlement to a TDIU throughout the period on appeal is granted. ____________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs