Citation Nr: 18146132 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 16-38 726 DATE: October 30, 2018 ORDER Entitlement to an initial increased disability rating in excess of 70 percent for major depressive disorder (MDD) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entirety of the appeal period, the Veteran’s MDD has been manifested by symptoms of frequency, severity, or duration most similar to occupational and social impairment with deficiencies in most areas. 2. The Veteran’s service-connected disabilities preclude him from securing and following a substantially gainful occupation consistent with his education and work experience. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for an initial disability rating in excess of 70 percent for depressive disorder are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2018). 2. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1986 to September 1986 and from July 1, 1999 to July 31, 1999. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. Under applicable law, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. The record reflects that VA’s duty to notify was satisfied by various correspondences. There is no indication in this record of a failure to notify. See 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2018); see also Scott v. McDonald, 789 F.3rd 1375 (Fed. Cir. 2015). With regard to the duty to assist, all relevant, identified, and available evidence has been obtained. The Veteran was provided VA examinations, the reports of which are adequate for the purpose of evaluating the proper disability rating. The Veteran has not referred to any additional, relevant, available evidence. Thus, the Board finds that VA has satisfied the duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 1. Entitlement to an increased rating for MDD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When rating 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 a rating 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 rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A 50 percent evaluation is warranted if the evidence establishes there is 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 or social relationships. 38 C.F.R. § 4.130. A 70 percent rating is warranted 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 worklike setting); inability to establish and maintain effective relationships. Id. A 100 percent 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 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. Id. The criteria set forth in the rating formula for mental disorders do not constitute an exhaustive list of symptoms, but rather are examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Nevertheless, the Veteran must demonstrate the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). Effective August 4, 2014, VA amended the regulations regarding the evaluation of mental disorders by removing outdated references to DSM-IV. The amendments replace those references with references to the recently updated “DSM-5.” As the Veteran’s claim was certified to the Board after August 4, 2014, the DSM-5 is applicable to this case. According to the DSM-5, clinicians do not typically assess Global Assessment Functioning (GAF) scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In Golden v. Shulkin, 29 Vet. App. 221 (2018), the Court further addressed the value of GAF scores. The Court noted that although GAF scores were designed to help quantify and summarize the severity of symptoms associated with metal disorders, the DSM-5 eliminated GAF scores because of their “conceptual lack of clarity” and “questionable psychometrics in routine practice.” DSM-5 at 16. The Court further explained that although it is true that examiners no longer use these scores, an adjudicator is not permitted to rely on evidence that the American Psychiatric Association itself finds lacking in clarity and usefulness. Any reliance on evidence that expert consensus has determined to be unreliable would be impossible to justify with an adequate statement of reasons or bases. The Veteran is currently assigned a 70 percent disability rating, effective June 5, 2013, for MDD under Diagnostic Code (DC) 9434. VA medical treatment records indicate that the Veteran consistently reported symptoms of depression, low energy, anxiety, irritability, isolation, suspiciousness, difficulty sleeping, and difficulty maintaining relationships. Occasionally, the Veteran reported passive suicidal ideation, without homicidal ideation. Social Security Administration (SSA) records note that the Veteran experienced limitations in memory, attention, and concentration. The records indicate that the Veteran reported symptoms of depression due to chronic pain, anxiety, isolation, occasional suicidal ideation, insomnia, and racing thoughts. He also reported that he felt like crying daily due to his pain and sadness generally. The records also indicate that he heard noises at night that sounded like someone was trying to break into his home. The Veteran was afforded a VA examination in March 2014, which provides a diagnosis of depressive disorder based on another medical condition, noting the Veteran was service connected for acromioclavicular joint separation of his left shoulder and gastroesophageal reflux disease (GERD) or hiatal hernia. The examiner noted that the Veteran suffered from symptoms of anxiety, low mood and energy, insomnia, irritability, anger, impaired concentration, suicidal thoughts, crying spells, low self-esteem, feelings of hopelessness, feelings of helplessness, and low motivation. The examination also notes symptoms of suspiciousness, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, and neglect of personal appearance and hygiene. The Veteran also reported that he occasionally experienced hallucinations, seeing shadows of something that was not there. The VA examiner determined that the Veteran had 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 medication. During the examination, the Veteran indicated that he had felt depressed more days than not for the last couple of years due to his physical limitations and pain. He reported that he had past suicidal ideation, and he indicated a weight gain of approximately 20 pounds in the past six months. The examination notes that the Veteran was alert and oriented to person, place, situation, and approximate date. It provides that he was casually dressed and appropriately groomed. The examination also notes that the Veteran’s affect was restricted and his insight and judgment were intact. The Veteran underwent another VA examination in April 2015, in which he received a diagnosis of unspecified depressive disorder with adjustment disorder and chronic pain syndrome due to his left shoulder and GERD. The examination notes that the Veteran suffered from symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, mild memory loss, flattened affect, impaired judgment, disturbances of motivation or mood, difficulty establishing and maintaining relationships, and impaired impulse control (such as unprovoked irritability with periods of violence). The VA examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran reported he had not engaged in any fights since his last exam, but he continued to be prone to verbal and physical aggression when he was angry. The Veteran indicated that his relationship with his family was strained, explaining that he argued with his wife frequently and may go as long as a week without talking to her. He also reported that he did not have many friends, and he felt like he was pushing his family away. Moreover, the Veteran indicated that he feared that someone was going to kill him. He reported that he checked windows, under the beds, and in the closets of his home, thinking that someone may have been hiding there. The examiner noted that the Veteran was alert, oriented, and somewhat distracted. He was cooperative but reluctant to engage in long testing processes due to physical discomfort. The examination notes that the Veteran was casually dressed, with good grooming and hygiene. The Veteran’s judgment and insight were reported as fair, noting circumscribed impairment in judgment associated with anger. The examiner noted that the Veteran was depressed and irritable, and he reported suicidal ideation without intent or plans to harm himself. A February 2017 VA disability benefits questionnaire (DBQ) notes a diagnosis of persistent depressive disorder associated with a medical condition. The examiner indicated that the Veteran suffered from symptoms of depressed mood; near continuous panic or depression that affected his ability to function independently, appropriately, and effectively; mild memory loss; disturbances in motivation or mood; and the inability to establish and maintain effective relationships. The examiner determined that the Veteran had occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. The examiner noted that the Veteran appeared to be confused and preoccupied with his pain during the examination. The Veteran reported he did not interact with people well and he was currently involved in a conflict with his siblings. The Veteran also indicated that he experienced conflicts with his wife due to his irritability. The Veteran reported past suicidal ideation, but he indicated that he received regular mental health treatment. He also reported that he heard noises at night and “saw stuff out of the side of his eyes,” but he could not explain what he saw. After a review of the evidence, the Board finds the Veteran’s MDD symptoms more nearly approximate the symptoms considered by a 70 percent disability rating which is currently in effect. See 38 C.F.R. § 4.130, Diagnostic Code 9434. Specifically, due to the Veteran’s near continuous depressed mood, impaired impulse control (such as irritability), anxiety, chronic sleep impairment, suspiciousness, mild memory loss, suicidal ideation, and difficulty establishing and maintaining effective relationships, the Board finds that the Veteran’s symptoms result in occupational and social impairment in most areas, such as work, school, family relations, judgment, thinking or mood for the entire period on appeal. In so concluding, the Board finds particularly persuasive the Veteran’s ongoing VA psychiatric treatment and consistently reported symptoms of near continuous depression due to chronic pain, anxiety, and impaired impulse control. Additionally, the Veteran has demonstrated that he has difficulty maintaining relationships, including within his own family. Therefore, the Board finds that a rating of 70 percent for the Veteran’s service-connected MDD is warranted for the period on appeal. 38 C.F.R. § 4.130, DC 9434. A 100 percent rating is not warranted in this case because the Veteran has not demonstrated gross impairment in thought processes, persistent danger of hurting himself or others, disorientation to time or place, or persistent delusions or hallucinations. The Board acknowledges the Veteran has regularly reported seeing or hearing things that are not there, but none of the Veteran’s providers or VA examiners indicated that this rose to the level of hallucinations or delusions. The record does not indicate that that the Veteran has experienced all of the symptoms associated with a 70 percent rating for MDD. However, the symptoms enumerated under the schedule for rating mental disorders are not intended to constitute an exhaustive list, but rather are intended to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular disability rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the Board finds that there is occupational and social impairment sufficient to warrant a 70 percent rating even though all of the specific symptoms listed for this evaluation are not manifested. 2. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a Veteran is precluded, by reason of service-connected disability, 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. Substantially gainful employment is employment that is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the employee resides. The term suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). The ability to work sporadically or to obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Employment may be marginal even when the Veteran’s earned income exceeds the poverty threshold if the Veteran is employed in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16(a). The determination as to whether a TDIU is appropriate is not based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Any consideration as to whether the Veteran is unemployable is a subjective one that is based upon the Veteran’s actual level of industrial impairment, not merely the level of industrial impairment experienced by the average person. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Advancing age and nonservice-connected disability may not be considered in the determination of whether a Veteran is entitled to a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating for service-connected disability, in itself, is recognition that the impairment makes it difficult to obtain and keep employment. Instead, the question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one, but is rather a determination for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at 60 percent or more. If there are two or more service-connected disabilities, one disability must be rated at 40 percent or more, and there must be sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the entire appeal period, the Veteran was in receipt of the following ratings: a 70 percent rating for MDD; a 20 percent rating for a left shoulder disability; and 10 percent rating for GERD; his combined rating is 80 percent. Therefore, for the entire appeal period, the Veteran met the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The record indicates that the Veteran has a bachelor’s degree in physical education; the Veteran does not have a teaching certificate and has not been employed in this field at any time. His past employment has included positions as a truck driver, construction supervisor, and machine operator. The records provide that the Veteran has been unemployed since 2013. The Veteran’s VA medical treatment records indicate that on several occasions he expressed feelings of guilt or shame for not being able to find work due to his mental and physical ailments. VA examinations conducted in August 2012 and March 2013 for his GERD indicated that the Veteran experienced epigastric pain, heartburn, and throat irritation due to acid reflux. The only functional loss the Veteran experienced was that sometimes he experienced hoarseness in his voice which created communication problems. A February 2013 VA examination for his left shoulder noted that the Veteran reported pain with movement that results in functional impairment. The examiner opined that the Veteran could have difficulty with physically demanding jobs but that he should be able to perform at a sedentary job. In an August 2017 VA examination, the examiner noted that the Veteran had experienced significant loss in flexibility and agility of his left shoulder, and he is unable to lift his arm over his head. Regarding his MDD, at his March 2014 VA examination, the examiner indicated that the Veteran’s psychiatric condition alone does not impair his ability to engage in physical and sedentary forms of employment, but it causes mild impairment in social and industrial functioning. The examination notes that the Veteran’s mental health disability limits abilities relevant to pursuing and sustaining substantially gainful employment consistent with education and experience. Specifically, the VA examiner found that the Veteran suffered moderate impairment in interpersonal relatedness, including his ability to interact and respond appropriately with the public, supervisors, and co-workers; moderate to severe impairment in his adaptability to stress and tolerance, to include his ability to respond appropriately to work pressures and changes in a usual work setting; moderate impairment in attention, memory, judgment, and problem solving, to include his ability to understand, remember, and carry out instructions and make judgments on work related decisions; and moderate impairment in his motivation and drive, to include task persistence, work pace, attendance, and punctuality. As noted above, the examiner determined that the Veteran had 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 medication. During the April 2015 VA psychiatric examination, the Veteran reported an incident in which he “got into it” with a manager, resulting in his termination in November 2013. The Veteran also indicated that driving became too physically challenging to continue due to his pain and mood symptoms. He reported that he was often irritable and would snap at people. He also indicated that since the last examination, he worked one day at his cousin’s restaurant but he was not able to stand that long and he left before the shift was over. As previously indicated, the examiner determined that the Veteran had occupational and social impairment with reduced reliability and productivity. A November 2016 VA treatment note indicates that the Veteran continued to suffer from symptoms of anxiety and depression, which has increased in severity due to his chronic physical problems and limitations. The provider indicated that the Veteran was unemployable. As discussed above, his February 2017 VA examination indicated that the Veteran had occupational and social impairment with deficiencies in most areas such as such as work, school, family relations, judgment, thinking, or mood. The examiner indicated that he was irritable, and appeared confused and preoccupied with his pain. SSA records indicate that the Veteran had been disabled since November 2013. The SSA decision which granted disability benefits provides that the Veteran’s disability status was due primarily to his mental impairments, but also indicates that he suffered from separate and independently sufficient severe physical impairments of the shoulder, cervical spine, and lumbar spine. The SSA benefits decision provides that the Veteran suffered from mild restrictions of daily activities and moderate difficulty in maintaining social functioning. The decision further indicates that the Veteran has moderate difficulty in maintaining concentration, noting that in this respect, the Veteran is capable of maintaining concentration for two hours of an eight-hour work day. Moreover, the SSA records indicate that the Veteran cannot interact with the public and he is limited in his ability to respond to criticism from supervisors. The records note that the Veteran reported a conflict with a supervisor at one of his jobs that resulted in his termination. Based on the evidence of record, the Board finds that entitlement to a TDIU is warranted. The symptoms documented on VA examinations as associated with, primarily, the Veteran’s service-connected left shoulder disability include physical symptoms with regard to chronic pain, limited range of motion, and reduced strength; the Veteran’s documented psychological symptoms include depressed mood, impaired judgment and concentration, irritability, and inability to interact with people. Thus, despite the Veteran’s education and college degree, the evidence shows that his combined service-connected disabilities impede his ability to work due to his physical limitations as well as impairment in social and occupational areas of functioning. In light of the Veteran’s occupational background and the functional limitations described, the Board finds that the Veteran is unable to obtain and maintain substantially gainful employment in accordance with his background and education level as a result of combined symptoms of his service-connected left shoulder and MDD disabilities. Accordingly, the Board finds that entitlement to a TDIU is warranted. THOMAS H. O'SHAY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Hite, Associate Counsel