Citation Nr: 18146271 Decision Date: 10/31/18 Archive Date: 10/30/18 DOCKET NO. 17-43 688 DATE: October 31, 2018 ORDER A higher initial rating in excess of 30 percent for depressive disorder is denied. A total disability rating based on individual unemployability due to service connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. For the entire initial rating period on appeal from May 25, 2005, the depressive disorder has more nearly approximated occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in mood and motivation. 2. The Veteran is not rendered unable to obtain or maintain substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. For the entire initial rating period on appeal from May 25, 2005, the criteria for a higher initial rating in excess of 30 percent for depressive disorder have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The criteria for a TDIU have not been met for any period. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from December 1943 to September 1945. 1. A higher initial rating for depressive disorder Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The Veteran is in receipt of an initial 30 percent rating for the entire initial rating period on appeal from May 25, 2005 under Diagnostic Code 9434. 38 C.F.R. § 4.130. The Veteran assets that a higher total (100 percent) initial disability rating is warranted. See June 2017 Notice of Disagreement. Pertinent to this case, the General Rating Formula for Mental Disorders provides that a 10 percent rating is assigned for 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. 38 C.F.R. § 4.130. A 30 percent rating is assigned for 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, and mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is provided when 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 and social relationships. Id. A 70 percent rating is provided when there is evidence that the psychiatric disability more closely approximates 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); and inability to establish and maintain effective relationships. Id. A 100 percent rating requires evidence of 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; and memory loss for names of close relatives, own occupation, or own name. Id. The use of the term “such as” in the General Rating Formula for Mental Disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id. In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that VA “intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms.” The Federal Circuit stated that “a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” It was further noted that “§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period from May 25, 2005, the service-connected depressive disorder has manifested in symptoms that more nearly approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in mood and motivation, and the severity of the depressive disorder did not cause occupational and social impairment with reduced reliability and productivity. A May 2010 private treatment record reflects the Veteran underwent testing in order to assess general cognitive functioning and reported memory problems. The Veteran reported no emotional problems since he started taking Celexa eight years ago. The Veteran endorsed a normal appetite, five to eight hours of sleep at night that is only interrupted to use the bathroom, frequent fatigue, poor concentration, and denied symptoms of suicidal or homicidal ideation and hallucinations; the Veteran’s primary complaints were issues with memory, concentration, and comprehension. During the May 2010 examination, the Veteran was observed to be polite, cooperative, and socially adept. After extensive testing, the Veteran was assessed to have cognitive function in the average to very superior range, with memory functioning in the average to high average range. Furthermore, emotional and interpersonal testing revealed anxiety related to military traumas and age-related health and memory problems. The May 2010 private provider assessed the Veteran’s depressive symptoms appeared to be medically managed and currently non-existent. Private mental health treatment records during the Veteran’s incarceration show he repeatedly reported being in a euthymic mood, with normal interest and appetite, without significant changes in sleep, nightmares, concentration, or energy, and denied thoughts of harming himself and others. The Veteran had repeatedly been observed to be alert, talkative, with normal speech, good grooming and hygiene, logical and goal directed thought structure, normal affective range and reactivity, without any indication of delusional thought content. See e.g. January 2012 private treatment record; May 2012 private treatment record; October 2012 private treatment record; January 2013 private treatment record; March 2013 private treatment record. A June 2011 VA examination report conducted during the Veteran’s incarceration shows he reported having many friends in the penitentiary and getting along well with others. The Veteran specifically denied any difficulties with depression and reported sleeping eight to nine hours per night and eating well. The VA examiner noted the Veteran spoke freely and spontaneously throughout the examination with clear and articulate speech; the Veteran was correctly oriented, his thoughts were logical, affect was within normal limits, his mood was happy, and his attention, concentration, and memory were intact. The Veteran underwent a VA examination in November 2013, the examination report for which shows the VA examiner was unable to diagnose the Veteran with any mental health disorder. The November 2013 VA examiner noted that while the Veteran expressed unhappiness about the circumstances surrounding his incarceration, he appeared happy and frequently smiled and laughed during the examination; the Veteran also reported some transient worry regarding the service connected knee disabilities. The Veteran underwent another VA examination in November 2016, during which the VA examiner assessed the service-connected depressive disorder has resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability perform occupational tasks. During the November 2016 VA examination, the VA examiner noted the Veteran’s symptoms include depressed mood, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. An April 2018 VA examination report reflects findings that the Veteran’s psychiatric disorder causes 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. The April 2018 VA examination report notes the Veteran’s psychiatric disorder has been manifested by symptoms of depressed mood. The VA examiner observed the Veteran to be well groomed, able to answer questions appropriately, recall remote events, and track conversations; the Veteran was correctly oriented and exhibited logical and goal oriented thoughts, intact attention and memory, without any evidence of hallucinations or delusions. Finally, the Veteran’s affect was within normal limits, mood was happy, and was frequently smiling and laughing such that the VA examiner stated the Veteran did not show any observable signs of depression or anxiety during the examination. VA mental health treatment records generally reflect mild mental health symptoms. An October 2017 VA treatment record notes the Veteran was very social and loves to interact with people and that he was observed to be oriented, with normal speech, clear and goal oriented thought processes, appropriate thought content, pleasant mood, good eye contact, and affect congruent to mood. See also November 2017 VA treatment record. The record includes a July 2016 private medical letter from Dr. W.M., wherein the Veteran’s psychiatric symptoms were described to be severe and include chronic and severe depression, extreme fatigue and insomnia, little interest in others, poor appetite that has resulted in weight loss. However, the findings contained in Dr. W.M.’s July 2016 private medical letter are contrary to the findings and observations of multiple VA and private examiners discussed above, over a time period of multiple years, all of whom have consistently found the Veteran’s psychiatric symptoms to be generally mild and controlled by medication. Accordingly, the Board finds that Dr. W.M.’s July 2016 private medical letter is outweighed by the other medical evidence discussed above, and is of no probative value in illustrating the nature and severity of the Veteran’s current psychiatric symptoms. The Board has carefully reviewed the lay and medical evidence of record and finds that the preponderance of the evidence is against the assignment of a higher initial disability rating in excess of 30 percent for the service connected depressive disorder for the entire initial rating period from May 25, 2005. The evidence of record shows the Veteran’s depressive disorder more nearly approximates occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, due to symptoms such as depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances in mood and motivation. Further, for the entire initial rating period on appeal, the depressive disorder did not manifest in occupational and social impairment with reduced reliability and productivity due to symptoms such as flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, impaired judgment, or impaired abstract thinking. The VA examination reports, VA treatment records, and private treatment records demonstrate the Veteran has been consistently observed to be alert, oriented and in touch with reality, without impairment of judgment, thought process, ability to communicate, or ability to understand and follow simple directions. Furthermore, the evidence does not demonstrate symptoms of flattened affect, circumstantial, circumlocutory, or stereotyped speech, panic attacks more than once a week, impaired judgment, or impaired abstract thinking at any time during the initial rating period on appeal. The Board has considered all the symptoms discussed above, including their severity, frequency, and duration. In evaluating these symptoms, the Board finds that the severity, frequency, and duration of the depressive disorder are more appropriately consistent with the symptoms contemplated by the 30 percent disability rating and do not more nearly approximate the symptoms contemplated for a 50 percent disability rating. See 38 C.F.R. § 4.130, Diagnostic Code 9434. For these reasons, the Board finds that the preponderance of the evidence is against the appeal for a higher initial disability rating for depressive disorder in excess of 30 percent for the period from May 25, 2005 forward. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. TDIU 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. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the rating schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015) (holding that a decision of TDIU under 38 C.F.R. § 4.16(b) by the Director of Compensation and Pension (C&P) is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Cf. Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (applying principles announced in Wages to 38 C.F.R. § 3.321(b) extraschedular adjudication, namely, Director of C&P decision is not evidence, and is not a policy decision, but is simply a decision or adjudication that is adopted by the RO and reviewed de novo by the Board). Individual unemployability must be determined without regard to any non service connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. After a review of all the evidence, lay and medical, the Board finds that the Veteran has not been rendered unable to obtain or maintain substantially gainful employment due to service-connected disabilities. As of May 22, 2006 (date of TDIU claim), and taking into account the increased disability ratings granted in the Board’s October 2018 decision, the Veteran has been awarded service connection for a right knee disability (20 percent disabling), right knee instability (30 percent disabling), depressive disorder (30 percent disabling), a left knee disability (10 percent disabling), and a right knee scar (0 percent disabling); taking the right knee disability and right knee instability as a common etiology, the Veteran’s service-connected disabilities meet the combined rating criteria for a TDIU under 38 C.F.R. § 4.16(a) for the period from May 22, 2006. As of June 30, 2017, the Veteran has also been awarded service connection for a left knee disability (20 percent disabling), left knee instability (20 percent disabling), chronic left wrist sprain (10 percent disabling), chronic right wrist sprain (10 percent disabling). The record reflects that the Veteran’s educational history includes training as an electrical engineer. The Veteran also reported obtaining a Bachelor’s in Science in general science and a Bachelor’s in Arts in biology. The Veteran briefly worked as a fishery biologist and briefly helped his father with his logging business. The Veteran spent the majority of his career working as a dentist and operating a private dental practice, from which he retired in 1985. See May 2010 private treatment record. The Veteran asserts that the service-connected right and left knee disabilities prevent him from obtaining or maintaining substantially gainful employment. See December 2016 VA Form 21-8940. In a May 2015 private medical letter, Dr. C.L. stated that the Veteran experienced multiple falls secondary to his service-connected knee disabilities, which have resulted in the now-service-connected wrist disabilities. Dr. C.L. stated the Veteran has chronic pain in his wrists, which make him unemployable; however, Dr. C.L. did not provide an explanation for how chronic wrist pain makes the Veteran unemployable in the context of the Veteran’s educational and occupational background. As the May 2015 private medical opinion is not supported by rationale, the Board finds that it is of no probative value in determining whether the Veteran’s service-connected disabilities render him unemployable. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion “must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions”); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008) (requiring medical examiners to provide a “reasoned medical explanation connecting” observations and conclusions). The record also includes a July 2017 private medical letter, in which Dr. W.M. stated the Veteran is unable to engage in gainful employment due to the service-connected depressive disorder and the medication needed to treat it. Dr. W.M. also provided that the Veteran has difficulty staying on task and maintaining a train of thought long enough to hold a conversation lasting more than a couple minutes and that his abstract thinking is impaired. Dr. W.M. opined that the Veteran is unemployable due to his severely impaired memory and ability to concentrate. Similar to Dr. W.M.’s July 2016 private medical letter discussed above, the description of the Veteran’s psychiatric symptoms contained in the July 2017 private medical letter is stands in stark contrast to the generally mild symptoms described by multiple other VA and private medical providers over the course of several years, including to the findings contained in the subsequent April 2018 VA examination report noted above. The April 2018 VA examiner provided an opinion that it is less likely than not that the Veteran experiences any occupational impairment due to his very mild, transient depression related to the service-connected knee disabilities, and the Veteran’s claim of having an overwhelming fear of falling is inconsistent with the severity of his knee injury, which the VA examiner described as minor. The VA examiner opined that, even with the service-connected depressive disorder, the Veteran is able to understand and remember work-like instructions and is able to sustain attention needed for job task completion, and is able to engage in appropriate social interaction based on his very mild, transient depression. The April 2018 VA examiner opined that the service-connected orthopedic disabilities involving the wrists, knees, and right knee scar would not reasonably be expected to render the Veteran unable to secure and maintain sedentary employment with reasonable accommodations. The VA examiner specifically addressed Dr. W.M.’s assertion that the Veteran is unable to follow a conversation for more than a few minutes, and noted that the Veteran was able to engage in a conversation during the April 2018 VA examination for over 30 minutes that was appropriate, focused, responsive, and consistent with an ability to engage in sedentary employment. (Continued on the next page)   Based on the foregoing, the Board finds that the weight of the lay and medical evidence demonstrates that the Veteran’s service connected disabilities do not prevent obtaining or maintaining substantially gainful employment for any period from May 22, 2006. As the preponderance of the lay and medical evidence is against a finding for a TDIU, the claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel