Citation Nr: 1541002	
Decision Date: 09/24/15    Archive Date: 10/02/15

DOCKET NO.  11-10 066	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas


THE ISSUES

1. Entitlement to a 70 percent disability rating for major depressive disorder prior to December 4, 2012.

2. Entitlement to total disability based on individual unemployability (TDIU) due to service-connected major depressive disorder.


REPRESENTATION

Appellant represented by:	Adam G. Werner, Esq.


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

A. Dean, Associate Counsel


INTRODUCTION

The Veteran had active service from October 1978 to January 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri, which continued a 50 percent disability rating for a depressive disorder. Jurisdiction was subsequently transferred to the RO in North Little Rock, Arkansas.

A December 2012 rating decision assigned a higher 70 percent rating, but only as of December 4, 2012. As this higher rating does not represent a grant of the maximum benefits allowable, the evaluation of the Veteran's depressive disorder remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Veteran testified before the undersigned at a May 2015 videoconference hearing. During the hearing the undersigned engaged in a colloquy with the Veteran toward substantiation of the claim. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A transcript of the hearing is in the claims file.

The issue of entitlement to TDIU is raised by the record and addressed in the body of this decision. May 2015 Hearing Transcript; see 38 C.F.R. §§ 3.340, 4.16 (2015); Rice v. Shinseki, 22 Vet. App. 447, 453-455 (2009) (holding that TDIU is not a separate claim for benefits; rather, it involves an attempt to obtain an appropriate rating for a disability or disabilities).

This appeal was processed electronically using the Veterans Benefits Management System (VBMS) paperless claims processing system. Any future consideration of this appeal should account for this electronic record.


FINDINGS OF FACT

1. With resolution of the doubt in the Veteran's favor, his major depressive disorder symptoms between February 19, 2009 and December 3, 2012 has been manifest by occupational and social impairment, with deficiencies in most areas.

2. From May 25, 2011 onwards, the Veteran's service-connected major depressive disorder prevented him from securing and following a substantially gainful occupation.


CONCLUSIONS OF LAW

1. The criteria for a disability rating of 70 percent for major depressive disorder were approximated between February 19, 2009 and December 3, 2012. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.130, Diagnostic Code (DC) 9433 (2015).

2. The criteria for entitlement to TDIU from May 25, 2011 onwards have been met. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, sets forth VA's duties to notify and assist appellants in substantiating a claim for VA benefits. See 38 C.F.R. §§ 3.102, 3.159, 3.326(a). Because the Veteran's claims are granted in full, any error related to the VCAA is harmless. See May 2015 Hearing Transcript (requesting that the 70 percent disability rating be granted from the date of the Veteran's claim for increase in February 2009); see also Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009).

Merits of the Claims

Entitlement to a 70 Percent Rating for Major Depressive Disorder Prior to December 3, 2012

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R., Part IV. Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Id.

The Schedule assigns DCs to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant. 38 C.F.R. § 4.3. The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited. Id.; see 38 C.F.R. § 4.14.

The Veteran's depressive disorder has been evaluated as 70 percent disabling as of December 4, 2012, and 50 percent disabling prior to that, under the General Rating Formula for Mental Disorders, which assigns ratings based on particular symptoms and the resulting functional impairment(s). See 38 C.F.R § 4.130, DC 9333. The General Rating Formula is as follows:

A 70 percent rating is assigned for 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 a work like setting); inability to establish and maintain effective relationships.

A 50 percent rating is assigned for 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; difficulty in establishing and maintaining effective work and social relationships.

The symptoms associated with each rating in 38 C.F.R. § 4.130 are not intended to constitute an exhaustive list; rather, they serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). Thus, the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the DC. See id. VA must consider all symptoms of a claimant's disorder that affect his or her occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 443. If the evidence demonstrates that a claimant suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the DC, the appropriate, equivalent rating will be assigned. Id. In this regard, VA shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126. Although VA considers the level of social impairment, it does not assign an evaluation based solely on social impairment. Id.

The Veteran's records include evaluations based on the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV), which includes Global Assessment Functioning (GAF) scores. These are based on a scale set forth in the DSM-IV reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996); DSM-IV. According to DSM-IV, a score of 61-70 indicates "[s]ome mild symptoms (e.g., depressed mood and mild insomnia OR some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships." A score of 51-60 indicates "[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)." Id. A score of 41-50 indicates "[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)." Id. A score of 31-40 indicates "[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)." Id. The Court has found that certain scores may demonstrate a specific level of impairment. See Richard, 8 Vet. App. at 267 and Bowling v. Principi, 15 Vet. App. 1, 14-15 (2001) (observing that a GAF score of 50 indicates serious impairment).

Although an examiner's classification of the level of psychiatric impairment reflected in the assigned GAF score is probative evidence of the degree of disability, such a score is not determinative of the rating assigned by VA in evaluating a psychiatric disorder under the rating criteria. See 38 C.F.R. §§ 4.2, 4.126 (2014); VAOPGCPREC 10-95 (March 31, 1995). Rather, VA must take into account all of the claimant's symptoms and resulting functional impairment as shown by the evidence of record in assigning the appropriate rating, and will not rely solely on the examiner's assessment of the level of disability at the moment of examination. See 38 C.F.R. § 4.126.

In April 2009, a VA examiner noted the Veteran reported problems with depression, anxiety, anger, sleep disturbance, weight gain, and poor concentration. The Veteran said he was "depressed all of the time" and that, when depressed, he had an "extreme sense of hopelessness" and pessimism. He reported panic attacks, including overwhelming anxiety and somatic symptoms. He stated he liked being with people, but noted he could "piss people off." The Veteran also stated he did not like crowds and had difficulty remembering what he was studying in school. The examiner indicated he did not have a copy of the Veteran's claims file to review, but that he had problems on a daily basis that were chronic in condition. The examiner opined that he had reduced reliability and productivity in his occupational and social adjustment because of flattened affect, impaired memory, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. He diagnosed recurrent, moderate major depressive disorder, and assigned a GAF score of 55 due to low social tolerance and unstable mood.

In September 2010, a VA examiner noted the Veteran reported problems with depression, poor concentration, lack of energy, insomnia, weight gain, and an inability to relax. The Veteran said he was "obsessive" and "anxious," with little hope for the future, and that when depressed he felt a "general sense of hopelessness." He reported anxiety in crowded situations, as well as anger problems, which he stated he expressed by screaming. The examiner noted the Veteran was having problems on a daily basis that were chronic in duration, with a moderate intensity that caused impaired social relationships and mood. The examiner opined the Veteran had reduced reliability and productivity in his occupational and social functioning because of flattened affect, panic attacks more than once per week, impaired judgment, disturbances of motivation and mood, and difficulty establishing and maintaining effective relationships. The diagnosis of recurrent, moderate major depressive disorder was continued, and a GAF score of 52 was assigned due to unstable mood.

VAMRs from the time period in question show that in a February 2009 psychiatric notation, the Veteran reported more depression and feelings of hopelessness associated with struggles in school, to include brief suicidal thoughts the week prior to his visit. February 2009 VAMRs. The clinician noted the Veteran had a significant history of suicide attempt. Id. 

PMRs indicate that the Veteran was directly admitted to a private hospital's behavioral health unit from a community psychiatrist's office. September 2009 PMRs. Records from his hospitalization indicate he was admitted on a voluntary basis due to "stress." His doctor noted "[h]is suicidal threats [were] among the vaguest of threats that one could imagine," and that he denied dangerousness towards anyone else. Id. He also noted the Veteran's judgment was an issue and his insight was limited. He was discharged after several days, with a notation that he was not psychotic and "not imminently dangerous to himself or anyone else at this time." Id.

February 2010 VAMRs note that the Veteran appeared to be at "chronic" minimal risk, but not at imminent risk, and later notes indicate he had suicidal thoughts for approximately one week in March 2010. February 2010 and June 2010 VAMRs. November 2010 VAMRs report that he ran out of his psychiatric medications six weeks prior, resulting in increased anxiety and depression. November 2010 VAMRs. At that time, the Veteran reported "chronic sporadic suicidal thoughts with no intent to act on thoughts." Id.

Although some of the Veteran's symptoms do not approximate particulars for a rating in excess of 50 percent prior to December 4, 2012, he has reported difficulties of chronic depression and occasional vague suicidal thoughts for the duration of the period in question.

Consequently, the Veteran's major depressive disorder warrants a 70 percent disability rating as of his February 19, 2009 claim for an increased rating.

The Board has also considered whether the evaluation of the Veteran's service-connected major depressive disorder should be referred for extraschedular consideration. See 38 C.F.R. § 3.321(b) (2015); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran's individual circumstances. Thun, 22 Vet. App. at 114. When an assigned rating is deemed inadequate, the case may be referred for extraschedular consideration. Id.

In Thun, 22 Vet. App. at 115, the Court held that the determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry. First, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. This first element is a threshold element and requires the Board to compare the severity and symptomatology of the claimant's service-connected disability with the rating-schedule for that disability. See id. If the rating criteria reasonably describe the claimant's disability level and symptomatology, the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant's disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant's disability picture requires the assignment of an extra-schedular rating. Id.

Referral for extraschedular consideration is not warranted. A comparison of the Veteran's depression symptoms and the relevant rating criteria do not show "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). The Veteran's major depressive disorder is manifest mainly by depressed mood, feelings of anger, and some suicidal thoughts. He did not report any symptoms associated with this disability that are not included in the rating criteria or have otherwise been left uncompensated or unaccounted for by his assigned schedular rating. See 38 C.F.R. § 4.130, DCs 9411, 9434; see also Thun, 22 Vet. App. at 115. There is no need to consider the second step of the inquiry, namely whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization, see id. at 118-19, and referral for extraschedular consideration is not warranted.

Entitlement to TDIU

Total disability exists when an impairment of mind or body is sufficiently incapacitating that it prevents the average person from securing or following a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work that is more than marginal and permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991).

A total disability rating may be assigned when the schedular rating is less than 100 percent and the disabled person is unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. See 38 C.F.R. §§ 3.341(a), 4.16(a). A Veteran's level of education, special training, and previous work experience may be considered part of a TDIU claim. A Veteran's age or impairment(s) caused by non-service connected disabilities may not be considered part of a TDIU claim. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.18. The critical inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993).

If unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. See 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one disability must be ratable at 40 percent or more and the combined disability rating must be 70 percent or more. Id. Disabilities of one or both upper extremities or one or both lower extremities (to include the bilateral factor), disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system (such as orthopedic disabilities) are considered as one disability for TDIU purposes. Id.

The schedular criteria for TDIU have been met as of February 19, 2009. See 38 C.F.R. § 4.16(a). The Veteran's service-connected major depressive disorder is rated as 70 percent disabling as of that date. See 38 C.F.R. §§ 4.71a, 4.87a, 4.124a. His combined disability rating is also 80 percent for this period. Thus, the Veteran has one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id.

During his April 2015 hearing, the Veteran testified that he last worked on May 24, 2011. April 2015 Hearing Transcript, pp. 6. He reported he was fired from his job, and at least seven jobs prior, for problems at work with his coworkers. Id. His VAMRs confirm he has not been employed since that time, and that he has had . VAMRs. August 2011 VAMRs indicate he was admitted to a psychiatric unit for depression with suicidal ideation, but without a plan. August 2011 VAMRs. A January 2012 mental health consultation noted he reported chronic baseline suicidal ideation without plan or intent, depression, and sleep difficulties. January 2012 VAMRs. An April 2015 examiner noted the Veteran reported significant interpersonal problems while working and also a history of leaving jobs because of emotional or behavioral factors. April 2015 DBQ and Mental Status Examination by J.R.A., pp. 4. The examiner also noted the had chronic impairments of functioning on and off the job. Id. at 9.

This evidence supports the claim of entitlement to TDIU, but only as of May 24, 2011, the first date that the Veteran was unemployed due to his service-connected major depressive disorder. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102; 4.3 (2013); Gilbert, 1 Vet. App. at 55.


ORDER

A 70 percent disability rating for major depressive disorder from February 19, 2009 to December 3, 2012 is granted.

Entitlement to TDIU from May 25, 2011 onwards is granted.



____________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs