Citation Nr: 1752898 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-29 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for major depression with anxiety disorder, and cognitive disorder prior to May 7, 2010. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to May 7, 2010. REPRESENTATION Veteran represented by: John R. Worman, Esq. ATTORNEY FOR THE BOARD M. M. Lunger, Associate Counsel INTRODUCTION The Veteran served on active duty from April 1969 to February 1971 and from February 1973 to December 1992. These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2009, May 2010 and May 2011 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. With regard to the Veteran's representation in this matter, the record shows that, in June 2011, the Veteran executed a VA Form 21-22a, Appointment of Individual as Claimant's Representative, in favor of John R. Worman, Esq., Woods & Woods, LLP. On July 14, 2017, notice that the Veteran's appeal had been certified to the Board for appellate review was mailed to the Veteran. A letter dated October 27, 2017 was received from Woods & Woods, LLP indicating that the firm no longer represents the Veteran and that the Veteran had been notified of their withdrawal from his case. However, pursuant to 38 C.F.R. § 20.1304(b) (2017), any request for a change of representation after 90 days following the mailing of notice to the Veteran that an appeal has been certified to the Board for appellate review must be mailed to the Board with a good cause explanation. Accordingly, the Board does not accept the representative's October 2017 withdrawal under the provisions of 38 C.F.R. § 20.1304(b) as the withdrawal of representation was received more than 90 days after notification of certification of the appeal to the Board had been mailed and no good cause explanation for a change in representation was offered. Therefore, John R. Worman, Esq. represents the Veteran in this appeal. The request for the withdrawal of representation is referred to the Agency of Original Jurisdiction (AOJ). See 38 C.F.R. § 20.1304(b)(1)(i) (2017). FINDINGS OF FACT 1. For the period on appeal, from July 6, 2009 to May 6, 2010, the Veteran's major depression with anxiety disorder, and cognitive disorder, has been characterized by occupational and social impairment with deficiencies in most areas; total and social impairment has not been shown. 2. For the period on appeal, from July 6, 2009 to May 6, 2010, the evidence of record does not demonstrate that the Veteran's service-connected major depression with anxiety disorder, and cognitive disorder, precluded the Veteran from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 70 percent, for major depression with anxiety disorder, and cognitive disorder, for the period from July 6, 2009 to May 6, 2010 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria for a TDIU for the period from July 6, 2009 to May 6, 2010 have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. The requirements of the statues and regulation have been met in this case. VA has also fulfilled its duty to assist the Veteran by obtaining identified and available evidence needed to substantiate his claim and affording him VA examinations to assess the severity of his major depressive disorder with anxiety disorder and cognitive disorder during the time period in question. There is no evidence that additional examinations are in order or that any relevant records have yet to be requested. See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of the responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was provided with a meaningful opportunity to participate in the claims process. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of these matters on the merits. The Board will therefore proceed to the merits of the Veteran's appeal. Increased Rating for Major Depressive Disorder The Veteran contends he is entitled to an increased disability rating, in excess of 70 percent, for his service-connected major depressive disorder with anxiety disorder and cognitive disorder for the period from July 6, 2009 to May 6, 2010. The Veteran has been assigned a 100 percent disability rating effective May 7, 2010. Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall 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). When evaluating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Under 38 C.F.R. § 4.130, psychiatric impairment is rated under the General Rating Formula for Mental Disorders ("General Rating Formula"). As relevant here, a 70 percent evaluation is warranted where 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 a worklike setting); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted where 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When determining the appropriate disability evaluation to assign, the Board's primary consideration is the Veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013); Mauerhan v. Principi, 16 Vet. App. 426, 442 (2002). Because the use of the term "such as" in the rating criteria demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, the Board need not find the presence of all, most, or even some of the enumerated symptoms to award a specific rating. Mauerhan, 16 Vet. App. at 442; see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004). Nevertheless, all ratings in the General Rating Formula are also associated with objectively observable symptomatology, and the plain language of the regulation makes it clear that a Veteran may only qualify for a given disability by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency and duration. Vazquez-Claudio, 713 F.3d at 118. Another factor for consideration is the Global Assessment of Functioning (GAF) score, which is a scale reflecting the "psychological, social, and occupational functioning in a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, Fourth Edition (DSM-IV)); see also Richard v. Brown, 9 Vet. App. 266 (1996). However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). The Veteran's service-connected major depressive disorder with anxiety disorder and cognitive disorder is assigned a rating of 70 percent for the period from July 6, 2009 to May 6, 2010, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. He asserted in his substantive appeal (VA Form 9) that his symptoms prevented him from being able to perform substantially gainful activity during this time period. The Veteran submitted a claim for an increased rating for his major depressive disorder on July 6, 2009. VA treatment records dated July 2009 indicate that the only issue the Veteran reported regarding his depression was that he did not think the Wellbutrin he had been prescribed was working; but he stated that his wife noticed a difference in him with the medication. The clinician advised the Veteran to discuss his medication with his provider. The Veteran failed to report for a VA mental disorders examination on August 7, 2009. In August 2009, the Veteran's wife submitted a lay statement in support of the Veteran's claim for an increased rating for his major depressive disorder. His wife described the difficulties the Veteran experienced in getting along with others, both at work and in social settings. She stated that the Veteran had trouble remembering things, such as taking medications, things he needs to do, and names of people. She reported that she needed to leave notes every day to remind him of what he needed to do. She described him as having low tolerance for others and that no one could meet his expectations. She reported that he was able to work for himself as a process server, but that he had to sit down every evening and map out his stops for the next day as he could not remember street names or locations. She described the Veteran as always upset, irritable and critical of others. The Veteran was scheduled for a second VA mental disorders examination in October 2009 to ascertain the severity of his symptoms. However, he failed to report for this examination. The Veteran offered no cause for his failure to report for the examination, nor did he request a rescheduling of the examination. A VA outpatient treatment record dated May 7, 2010 revealed the Veteran sought treatment, at the urging of his wife, due to an increase in the severity of his psychiatric symptoms. The Veteran reported that he had been hitting a door. The clinician noted that this action was what made the Veteran's wife insist he come in for treatment. The clinician noted that the Veteran's depression was much worse and advised that the Veteran be reassessed for this disability. Based upon this treatment record, the Veteran's rating for major depression was increased to 100 percent disabling effective May 7, 2010. After careful review and consideration of the Veteran's electronic file, the Board finds that a disability rating higher than 70 percent for the period from July 6, 2009 to May 6, 2010 is not supported by the evidence of record. Notably, the Veteran failed to report for two scheduled VA mental disorder examinations - in August and October 2009. Therefore, evidence that may have supported the Veteran's claim for an increased rating is not available for the Board's consideration. The only pertinent outpatient treatment record during the time period in question is dated July 2009, and the only issue addressed in this record is the Veteran's concern with his prescription of Wellbutrin. There is no medical evidence associated with the file which establishes the Veteran's symptoms met the criteria for a 100 percent disability evaluation prior to May 7, 2010. The Board acknowledges the statement provided by the Veteran's wife which described the Veteran's behavior. However, the Board finds that she is not competent to provide evidence pertaining to complex medical issues such as the nature of psychiatric symptoms the Veteran experienced, as such a question is not is not answerable by personal observation alone or by the application of knowledge within the realm of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 and n.4. (Fed. Cir. 2007). Thus, the Board finds that a rating in excess of 70 percent for the period from July 6, 2009 to May 6, 2010 for the Veteran's service-connected major depression with anxiety disorder, and cognitive disorder, is not warranted. Entitlement to a TDIU The Veteran contends that his service-connected major depression with anxiety disorder, and cognitive disorder rendered him unemployable for the period from July 6, 2009 to May 6, 2010. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017); Moore v. Derwinski, 1 Vet. App. 356 (1991). TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retention of gainful employment. Moore, at 358-59. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). The evidentiary standard for TDIU opinions is not whether the average person would be precluded from substantially gainful employment, but whether the specific veteran would be so precluded as a result of service-connected disabilities. Unlike the regular disability rating schedule, however, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); see Friscia v. Brown, 7 Vet. App. 294 (1994). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of a service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran is service-connected for major depression, evaluated as 70 percent disabling, effective July 6, 2009 to May 6, 2010. As such, the schedular criteria for a TDIU have been met. However, despite the Veteran's 70 percent disability rating for the service-connected major depression, the evidence does not establish that his service-connected major depression rendered him unemployable during this time period. The Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in February 2010. On this form, the Veteran indicated that he was self-employed and worked part-time as a process server. He stated that his work had declined over the past five years. At a January 2011 VA examination, the Veteran reported that he had not worked since cardiac surgery in November 2010. In March 2012, the RO asked the Veteran to provide an updated VA Form 21-8940 to include the date he actually stopped working. The Veteran was also asked to provide information relating to his earnings in order to determine whether or not his employment could be considered gainful. To date, the Veteran has not responded to this request. The Board concedes that the Veteran's service-connected major depression caused some level of occupational impairment, as evidenced by the 70 percent disability evaluation he has been assigned for this condition from July 6, 2009 to May 7, 2010. The percentage ratings set forth in the Rating Schedule represent as far as can practically be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Thus, the disability rating itself recognizes that industrial capabilities are impaired. Van Hoose, at 363. However, for a TDIU, the Veteran's service-connected disability, alone, must be sufficiently severe to cause unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Here, the Veteran did not furnish the information requested by the RO that may have helped support his claim. As there is no evidence establishing the Veteran was incapable of maintaining gainful employment during the time period in question, entitlement to a TDIU is not warranted. Accordingly, the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit-of-the-doubt rule does not apply, and entitlement to a TDIU is denied. See 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). ORDER Entitlement to an increased rating in excess of 70 percent, prior to May 7, 2010, for major depression with anxiety disorder, and cognitive disorder is denied. Entitlement to a TDIU, prior to May 7, 2010, is denied. ____________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs