Citation Nr: 1756154 Decision Date: 12/06/17 Archive Date: 12/15/17 DOCKET NO. 16-53 602A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Whether the amount of a settlement under the Federal Torts Claims Act (FTCA) should be offset against disability compensation awarded pursuant to 38 U.S.C. § 1151. 2. Entitlement to an initial rating greater than 20 percent for depression. ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from June 1959 to June 1962. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. The Board notes that the RO certified only the increased rating issue to the Board; however, the RO clearly adjudicated the issue of whether the FTCA payment should be offset against VA compensation benefits under 38 U.S.C. § 1151 as part of the increased rating issue, to include in the June 2015 Statement of the Case (SOC). The Veteran submitted a timely appeal of that determination and has consistently argued that his VA compensation benefits should not be withheld to offset the FTCA payment. As such, the Board finds that it has jurisdiction over this issue and that there is no prejudice to the Veteran in the Board's adjudication of the claim. This appeal was processed using the Veteran's Benefits Management System (VBMS) and Virtual VA paperless claims processing systems. Accordingly, any future consideration of the case should take into consideration the existence of these electronic records. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDINGS OF FACT 1. In October 2010, the United States settled a claim made by the Veteran under the FTCA for personal injury incurred at a VA medical facility in the amount of $25,000.00. 2. In June 2012, the RO awarded the Veteran compensation under the provisions of 38 U.S.C. § 1151 for depression, as secondary to brachytherapy at a VA medical facility that did not meet the standard of care. 3. The Veteran's depressive disorder is manifested by occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: depressed mood, anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, passive suicidal ideation, social withdrawal, irritability, difficulty managing anger, ruminating, lowered self-esteem, and crying spells, all resulting in deficiencies in most areas, but less than total social and occupational impairment. CONCLUSIONS OF LAW 1. The full settlement amount of $25,000.00, or any remaining portion, must be recouped from the Veteran's award of 38 U.S.C. § 1151 disability benefits. 38 U.S.C. § 1151 (2012); 38 C.F.R. § 3.800 (2017). 2. The criteria for an increased rating of 70 percent, but no higher, for depression have been met. 38 U.S.C. §§ 1151, 1155, 5107 (2012), 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veteran has not identified any shortcomings in fulfilling VA's duty to notify and assist. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). For the above reasons, the Board finds the duties to notify and assist have been met, all due process concerns have been satisfied, and the appeal may be considered on the merits. Offset In approximately June 2006, the Veteran underwent brachytherapy at a VA medical facility, wherein he received 2 Lupron injections over a three month course and his treatment later was determined not to meet the recognized standard of care. As a result of that treatment a tort settlement was reached. The record shows that in October 2010, the Veteran agreed to settle a FTCA claim related to the Veteran's VA brachytherapy treatment. The monetary settlement totalled $25,000.00. In June 2012, the RO awarded the Veteran compensation under the provisions of 38 U.S.C. § 1151 for depression, as secondary to the brachytherapy at a VA medical facility that did not meet the standard of care. The RO also informed the Veteran that his payments were being withheld in order to recoup the $25,000.00 settlement he received under the FTCA. The Veteran argues that the offset is "arbitrary and capricious" because the FTCA settlement is unrelated to the depression award, as the "depression was never in the original filing." After a careful review of the law and the record, the Board finds that the award of compensation for depression under U.S.C. 1151 was based entirely as arising from the brachytherapy, and as a matter of law, the appeal must be denied. The law in this case is clear. Under 38 U.S.C. § 1151: [w]here an individual is, on or after December 1, 1962, awarded a judgment against the United States in a civil action brought pursuant to section 1346(b) of title 28, or . . . enters into a settlement or compromise under section 2672 or 2677 of title 28 by reason of a disability or death treated pursuant to this section as if it were service-connected, then no benefits shall be paid to such individual for any month beginning after the date such judgment, settlement, or compromise becomes final until the aggregate amount of benefits which would be paid but for this subsection equals the total amount included in such judgment, settlement or compromise. 38 U.S.C. § 1151(b). VA regulations implementing section 1151(b) are in accord with the statute, and provide that where any person is awarded a judgment on or after December 1, 1962, against the United States in a civil action brought pursuant to 28 U.S.C. § 1346(b), or enters into a settlement or compromise on or after December 1, 1962, under 28 U.S.C. §§ 2672 or 2677, by reason of disability, aggravation or death within the purview of this section [i.e., 38 U.S.C. § 1151], no compensation shall be paid to such person for any month beginning after the date of such judgment, settlement, or compromise on account of such disability, aggravation, or death becomes final until the total amount of benefits which would be paid except for this provision equals the total amount included in such judgment, settlement, or compromise. The provisions of the paragraph do not apply, however, to any portion of such compensation or dependency and indemnity compensation payable for any period preceding the end of the month in which such judgment, settlement, or compromise becomes final. 38 U.S.C. § 3.800(a)(2). Under the statutory provision noted above and under the corresponding applicable regulation, the total amount of $25,000.00 is subject to recoupment from the Veteran's award of VA compensation benefits under 38 U.S.C. § 1151 before payments to him of those benefits can resume. The Board is cognizant of the Veteran's honorable service and his current financial status. However, the controlling law and regulation are quite specific on this point, and there is no legal authority for any exception in the present case. The Board is bound by the law and is without authority to grant benefits on an equitable basis. See 38 U.S.C. §§ 503, 7104; Harvey v. Brown, 6 Vet. App. 416, 425(1994). It has been observed that "no equities, no matter how compelling, can create a right to payment out of the United States Treasury which has not been provided for by Congress." Smith (Edward F.) v. Derwinski, 2 Vet. App. 429, 432-33 (1992) (citing Office of Personnel Management v. Richmond, 496 U.S. 414, 426 (1990)). For the reasons shown above the Board has determined that the full amount of the $25,000.00 settlement of the FTCA claim must be offset against the compensation benefits payable to the Veteran under 38 U.S.C. § 1151. Because of the absence of legal merit or lack of entitlement under the law, the claim must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. With respect to the Veteran's current rating, a June 2012 rating decision indicated that it was tasked with determining "the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level. Present symptoms warrant a 50 percent evaluation. However, your prior evaluation was determined to be at the 30% evaluation. VA regulations permit only the payment of the difference from the 50 percent evaluation and the 30 percent evaluation." As such, a 50 percent disability rating was assigned, but as the baseline of the acquired psychiatric disorder was 30 percent, a rating of 20 percent was assigned for the depression disorder. The Veteran claims the rating does not accurately depict the severity of his condition. The General Rating Formula for Mental Disorders provides: A mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication, a noncompensable (0 percent) rating. Occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication, a 10 percent rating. Occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events), a 30 percent rating. 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, a 50 percent rating. 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 70 percent rating. 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 name, a 100 percent rating. 38 C.F.R. § 4.130, DC 9434. When determining the appropriate disability evaluation under the general rating formula, the Board's primary consideration is a veteran's symptoms, but it must also make findings as to how those symptoms impact the Veteran's occupational and social impairment. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). 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. Nevertheless, as 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 the Veteran's impairment must be "due to" those symptoms, a veteran may only qualify for a given disability rating under the general rating formula by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Id at 117-18. Additionally, a Global Assessment of Functioning (GAF) score is often used by treating examiners to reflect the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Richard v. Brown, 9 Vet. App. 266 (1996). A GAF score is highly probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). The Board recognizes that GAF scores are not utilized in the DSM-5. In February 2007, the Veteran denied a low mood, but had intermittent suicidal ideation without recent plan. He also reported vivid dreams. A July 2007 depression screen was negative. In November 2007, a mental status examination showed that the Veteran was fully oriented, able to follow commands, and had fluent speech. In May 2008, the Veteran denied urgent concerns or suicidal thoughts, though he was isolating more, had problems with relationships, and had difficulty concentrating. To a VA psychiatrist, a few days later in May 2008 the Veteran reported that he had to "push myself to go to work in the city." He was divorced with a daughter and currently was in a relationship. He had not been working since injuring his back a year and a half previously. The Veteran slept well, ate "too much," and got along with others. Mental status evaluation demonstrated that the Veteran was alert, euthymic, and pleasant. Speech, memory, sensorium, insight, concentration, and judgment all were normal or unimpaired. The diagnosis was adjustment disorder with depressed mood and a GAF score of 70 was assigned. The Veteran was afforded a VA examination in December 2011. The examiner noted a diagnosis of depression, not otherwise specified, and review of the claims file. There was a noted GAF score of 45 due to passive suicidal ideation. He had made use of the Veterans Crisis Line in the past year. Overall, the examiner indicated that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran was divorced with one daughter. Other than his current girlfriend, he denied having any family or friends. Since his June 2006 surgery, he had stopped speaking with friends and had eventually lost all contact. He reported constant discord between himself and his girlfriend and no intimacy, due in part to the Veteran's lack of sexual interest following his surgery. The Veteran had recently been homeless and was living alone in an apartment in an unsafe neighborhood. The Veteran currently was unemployed and had last worked "intensely" in 2005 or 2006 doing freelance photography. Prior to that he had worked doing administrative work, copywriting, and eventually photojournalism. The Veteran reported initially seeking mental health treatment about one and a half years previously due to feeling angry and tearful all the time and having problems in his relationship. He had been receiving treatment since September 2009, which had helped reduce anxiety, dwelling on stuff, and his self-critical thoughts and feelings. Symptoms included depressed mood, anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, social withdrawal, irritability, difficulty managing anger, ruminating, lowered self-esteem, and crying spells. The Veteran reported that due to the hormone injection for his prostate cancer, "From the moment that needle went in there my whole life changed." Thereafter, the Veteran had a total loss of sexual interest, desire, or ability. In addition, about 12 to 18 months after his brachytherapy, in 2008 or 2009, he received a letter from VA essentially stating that the physician involved in the case had practiced in an improper manner. The Veteran reported that from that time onwards, he began to constantly think about the procedure, his health, his loss of sexual functioning, and the effects it had on his life. At that time, his depression apparently significantly increased. The examiner opined that the Veteran's depression was an additional disability and related to the improper treatment he received for his prostate cancer. The physical changes he had undergone were significant, namely a loss of sexual functioning, which led to significant declines and impairment in various areas of functioning including mood, motivation, and interpersonal functioning. A January 2012 VA medical opinion was obtained for a baseline of the Veteran's depression prior to treatment for brachytherapy and after such treatment. The prior examiner concluded that it was more likely than not that the Veteran was experiencing symptoms of depression some time after undergoing brachytherapy; however, the symptoms did not meet the criteria for depression, not otherwise specified, major depressive disorder, or other such condition. The examiner noted that such a conclusion was supported by the record. The Veteran was evaluated in May 2008 and diagnosed with adjustment disorder with depressed mood and a GAF score of 55 [sic]. No formal recommendation was made and plan was for the Veteran to return for treatment as needed. The Veteran reported in April 2012 that he was doing okay and denied suicidal ideation or depression, but did experience anxiety. His sleep was irregular, but generally adequate. He enjoyed the relaxation of surf fishing. His GAF score was noted to be 56. In September 2012, the Veteran was noted to enjoy caring for his cat and to have started spiritual readings. His life was described as being one crisis after another and, but he was enjoying a period of stability. In December 2012, the Veteran was generally stable. He denied suicidal ideation or overt panic attacks. The Veteran had a few friends and had just moved. He was still agonizing at times over his relationship with his girlfriend and was conflicted about breaking up with her. His GAF score was 55. In March 2013, the Veteran denied suicidal ideation in the previous 30 days. In November 2013, the Veteran's GAF score was 50, with depressed and anxious mood, difficulty making decisions, and stress-related health problems. In January 2014, the Veteran was in moderately anxious distress. He had difficulty making decisions and problems with concentration. The primary issue was the potential danger of harm from his girlfriend, who within the past 6 months had tried to hit him with a hammer and stab him with a knife. On both occasions he had been able to disarm her. A few days earlier she had threatened to poison him. In April 2014, the Veteran was fully oriented with an anxious mood, but was able to laugh at situations that he realized in retrospect were not that bad. The Veteran was stable and optimistic and denied suicidal or homicidal ideation. In September 2014, the Veteran reported improving incidents of generalized anxiety and that his symptoms did not prevent him from completing his daily activities. The Veteran's girlfriend had been suicidal at 2 separate times in July and the main incident occurred at the Veteran's apartment and necessitated him taking her to the hospital where she stayed for several days. In February 2015, the Veteran was noted to be struggling with ending his relationship with his girlfriend of 10 years. He felt some guilt about abandoning her, but felt that she was causing him stress. The Veteran denied depressive symptoms, hallucinations, delusions, or suicidal or homicidal ideation. On examination, the Veteran was fully oriented, had adequate insight, and had intact cognitive function. His GAF score was noted to be 61. A May 2015 psychosocial assessment noted the Veteran's primary complaints of depression and anxiety. There was no history of treatment, but a long history of depression and anxiety. The Veteran denied having any self-care needs. There was no risk of violence to himself in the past 12 months. The Veteran did not endorse suicidal ideation and, indeed, denied current suicidal ideation, intent, or plan. That said, there was a past history of suicide attempts many years previously during a dark time of crisis the Veteran contemplated jumping off his building's balcony. The Veteran denied homicidal ideation and was not deemed a risk to others. There was evidence of accessible and positively motivated social supports. He verbalized hope and had future-oriented plans and commitments. The Veteran lived alone in a rented apartment, but did have a significant other - although it was noted to be a conflict-filled long-term relationship that was a trigger for his anxiety and depression. The Veteran was the weight room manager at the apartment community's gym. He spent free time watching television and movies and teaching himself guitar and banjo. The Veteran affect and mood were appropriate, thought processes were intact, memory and concentration were normal, and there was no evidence of delusions or hallucinations. The Veteran did not report severe emotional distress, severe anxiety, panic attacks, hopelessness, insomnia, or obsessive rituals. Thus, the evidence clearly establishes that the Veteran had long-standing mental health symptoms. As an initial matter, the Board must determine the baseline of the Veteran's current depressive disorder that has been medically determined to be related to brachytherapy at a VA medical facility in June 2006 that failed to meet the standard of care. As noted above, entitlement to service connection for depression was awarded under the provisions of 38 U.S.C. § 1151. For VA purposes, aggravation of nonservice-connected disabilities is governed by 38 C.F.R. § 3.310, which instructs: "The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level." The language of the regulation indicates that "... the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury." See 38 C.F.R. § 3.310 (2017). To determine the appropriate compensation rating assignments in this case, the Board must first determine a pre-aggravation baseline rating. The baseline rating will be used to offset the degree of severity shown in the post-aggravation periods on appeal, to distinguish the non-service-connected pre-aggravation impairment from the aggravated severity of impairment deemed to be service-connected. As noted above, the RO's rating assignment determined a pre-aggravation baseline rating of 30 percent. The basis of the RO's determination is not entirely clear from review of the record; however, it appears to have been based on consideration of the May 2008 psychiatric evaluation, the December 2011 VA examination report, and the January 2012 addendum report. In any event, the Board has revisited this matter on de novo review as an essential part of the rating assignment issue on appeal. The determination of the baseline is part of the matter before the Board of assigning the correct initial rating; it is not part of the established grant of service connection itself. In that regard, the Board finds that the proper pre-aggravation baseline was 0 percent. The Veteran's primary contention is that he had long-standing mental health symptoms that were significantly aggravated due to sexual dysfunction problems as a result of his brachytherapy treatment and that was further worsened when he found out about his improper treatment at VA. It is somewhat unclear from the record at what point the Veteran found out that his June 2006 brachytherapy treatment did not meet the required standard of care. He has reported learning of this 12 to 18 months after the June 2006 treatment, but also reported learning of it as late as 2009. Thus, there is some question as to whether the May 2008 psychiatric evaluation occurred prior or subsequent to such notification, which increased the Veteran's psychiatric symptoms. In any case, the evaluation took place after the treatment and the immediately observable and ongoing decreased sexual functioning as a result of the brachytherapy. The Board recognizes that the Veteran reported ongoing suicidal ideation at that time; however, the treating medical professional clearly did not deem such a report of particular significance given the Veteran's overall symptoms and functioning, as evidenced by the GAF score of 70 assigned at that time. Moreover, the January 2012 VA examination report addendum specifically concluded that the Veteran's currently diagnosed depression disorder was entirely due to the brachytherapy treatment, as he did not meet the criteria for a depressive disorder prior to learning about the improper care from such treatment. As such, there is little evidence to suggest that the Veteran's ongoing mental health symptoms, including his lay reports of depression, were clinically significant and the evidence does not indicate that the pre-existing mental condition resulted in symptoms severe enough either to interfere with occupational and social functioning or to require continuous medication. Indeed, the evidence suggests the opposite, as the Veteran was not on medication and he reported having friends and a girlfriend. Based on the foregoing, the Board concludes that the Veteran's pre-aggravation baseline was 0 percent. As to the current disability rating, the Board concludes that the objective medical evidence and the Veteran's lay statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 70 percent disability rating. See 38 C.F.R. § 4.7. In reaching that conclusion, the Board notes that the Veteran's symptoms include depressed mood, anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, passive suicidal ideation, social withdrawal, irritability, difficulty managing anger, ruminating, lowered self-esteem, and crying spells. In summary, the Board finds that the above symptoms most closely approximate the higher 70 percent rating. The Board recognizes that all of the above-listed symptoms have not been noted at all times or in all records. That said, the severity of the Veteran's depressive disorder overall appears to have been essentially consistent for the entire appellate time period. For this reason, staged ratings are not applicable. Therefore, as explained above, the medical and lay evidence supports the Board's conclusion that a 70 percent rating is warranted for the entire appeal period. However, a rating greater than 70 percent is not appropriate for any period of time on appeal because the Veteran does not have total social and occupational impairment. Although the Veteran clearly has a serious disability, the evidence does not show that there is total occupational and social impairment. He does not have symptoms such as gross impairment of thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others (while he reported suicidal thoughts on some occasions he has consistently denied plans or intent); intermittent inability to perform activities of daily living due to mental health problems; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. As noted, while the Veteran has expressed suicidal thoughts, he has denied any actual intent to harm himself. As such, his symptoms more closely approximate those for a 70 percent rating, specifically suicidal or homicidal ideation, but without rising to the level required for a 100 percent rating, specifically a persistent danger of hurting self or others. As to the Veteran's reported concentration and memory problems, there is no indication or suggestion that these problems rise to the level of severity contemplated for a 100 percent rating, namely forgetting one's own name or those of family or close friends. As to occupational and social functioning, during the appellate period the Veteran has been in charge of the weight room at his apartment building, which indicates that he is able to function in a job-like position of responsibility that potentially involves interacting with other members of the community. In addition, he has had an ongoing relationship with a significant other and the problems with the relationship appear to be related in large part to mental health problems with the significant other, rather than with the Veteran. Thus, the Veteran does not have total social and occupational impairment sufficient to warrant a total schedular rating. He does have some deficiencies in several areas, but the greater weight of evidence demonstrates that it is to a degree that is contemplated by the 70 percent rating assigned herein. In determining that a rating in excess of 70 percent is not warranted, the Board has considered the Veteran's complaints regardless of whether they are listed in the rating criteria, but for the reasons discussed above concludes that the Veteran's level of social and occupational impairment does not warrant a rating in excess of the currently assigned 70 percent rating. In summary, for the reasons and bases set forth above, the Board concludes that an increased rating of 70 percent, but no more, is warranted for the entire period of time that is covered by this claim and that the Veteran's pre-aggravation baseline was 0 percent. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER The appeal to establish that proceeds of a settlement under FTCA should not be offset against compensation benefits granted under 38 U.S.C. § 1151 is denied. Entitlement to an increased rating of 70 percent, but no greater, for depression is granted, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs