Citation Nr: 18146458 Decision Date: 11/01/18 Archive Date: 10/31/18 DOCKET NO. 16-31 814 DATE: November 1, 2018 ORDER Entitlement to a rating more than 50 percent for major depressive disorder with anxiety disorder not otherwise specified (acquired psychiatric disorder) for the period prior to June 10, 2015 is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to June 10, 2015 is denied. FINDINGS OF FACT 1. For the period prior to June 10, 2015, the symptoms of the Veteran’s acquired psychiatric disorder resulted in occupational and social impairment with reduced reliability and productivity. Symptoms of occupational and social impairment in most areas have not been demonstrated. 2. For the period prior to June 10, 2015, the Veteran’s service-connected disabilities did not render her unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. For the period prior to June 10, 2015, the criteria for entitlement to a rating more than 50 percent for major depressive disorder with anxiety disorder not otherwise specified (acquired psychiatric disorder) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.130, Diagnostic Code 9434. 2. For the period prior to June 10, 2015, the criteria for entitlement to a total disability due to individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1978 to June 1981. The Board observes that a June 2016 rating decision increased the Veteran’s acquired psychiatric disorder from 50 percent to 70 percent disabling, effective June 10, 2015. A TDIU was also awarded, effective the same date. It is noted that, according to the Veteran’s July 2016 VA Form 9, the Veteran selected to only appeal the issues of entitlement to rating more than 50 percent for her acquired psychiatric disorder for the period prior to June 10, 2015 as well as entitlement to a TDIU for the period prior to June 10, 2015. As such, these two issues are currently before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating more than 50 percent for major depressive disorder with anxiety disorder not otherwise specified (acquired psychiatric disorder) for the period prior to June 10, 2015. The Veteran seeks entitlement to a rating more than 50 percent for her acquired psychiatric disorder. Her 50 percent rating became effective on April 27, 2013. The RO has rated the Veteran’s acquired psychiatric disorder under 38 C.F.R. § 4.130, Diagnostic Code 9434 for major depressive disorder. Diagnostic Code 9434 is included in the General Rating Formula for Mental Disorders (General Rating Formula). Under the General Rating Formula, a 50 percent evaluation is warranted where the disorder is manifested by 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, for example, 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. Id. 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is indicated 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. Id. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is a Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (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, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. See 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 the veteran’s impairment must be “due to” those symptoms, 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. To begin, the Board observes that the Veteran has received VA treatment for her acquired psychiatric disorder, including prescription medication and therapy. In an April 2013 VA treatment report, the Veteran appeared alert and oriented, with normal affect. In a June 2013 VA treatment report, the Veteran did not demonstrate any signs of depression or anxiety. A follow-up report indicates that the Veteran experienced shortness of breath and chest pain while in conflict with VA staff. Her chest pain was described as atypical and appeared to be related to her anxiety. According to a July 2013 VA treatment report, the Veteran stated that her memory is in intact and she denied any suicidal or homicidal ideations. The Board notes that the Veteran submitted several lay statements in May 2014 in support of her claim. These statements generally suggest that the Veteran became withdrawn and lonely after her military service. The Veteran received a VA psychiatric examination in July 2014, where she was diagnosed with major depressive disorder and anxiety disorder, not otherwise specified. The Veteran reported that she is no longer dating and has no children. She reported having three close friends that she sees approximately once per month, along with several casual friends that she sees occasionally. The Veteran stated that she enjoys shopping, reading, walking, and playing computer games. She also stated that she regularly cooks, cleans, and attends church twice a week. The Veteran reported that she earned a bachelor’s degree in sociology, along with two master’s degrees in education and religion. The Veteran also reported that she currently works for Sumter County School District and that she has worked there for the past three years. The Veteran claimed that she had some recent problems with irritability and concentration at work. The examiner noted that the Veteran’s psychiatric symptoms include depressed mood, anxiety, chronic sleep impairments, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or in a worklike setting. The examiner determined that the Veteran’s psychiatric symptoms cause occupational and social impairment with reduced reliability and productivity. The Board observes that it appears that the Veteran’s psychiatric symptoms increased in severity soon after the January 2015 death of her sister. For instance, VA treatment reports from around that time describe how the Veteran was having difficulty coping with her sister’s death. The Veteran also complained about a lack of emotional support from other members of her family and friends. Additional VA treatment reports from 2015 reveal complaints of anxiety and/or panic attacks. Later, in June 2015, the Veteran reported increased feelings of depression and suicidal ideations, which at least in part formed the basis for her eventual 70 percent rating. Given its review of the medical evidence of record, the Board finds that for the period prior to June 10, 2015, the Veteran’s service-connected acquired psychiatric disorder is shown to be essentially productive of occupational and social impairment with reduced reliability and productivity and difficulty in establishing and maintaining effective work and social relationships. Additionally, while the Veteran’s overall symptomatology has caused considerable impairment in her ability to establish or maintain effective or favorable relationships with people, symptoms of severe impairment have not been demonstrated. In this regard, the Board notes that VA treatment reports from 2013 reveal minimal symptoms of depression or anxiety. Notably, although she had the opportunity to do so, the July 2014 VA examiner did not conclude that the Veteran’s acquired psychiatric disorder caused occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment thinking and/or mood. Importantly, it was not until June 2015 that the Veteran began to experience suicidal ideations and feelings of being overwhelmed. A September 2015 VA psychiatric examination confirmed an increase in her depressive symptomatology. The Board finds that the Veteran has been competent and credible when reporting her symptoms. In considering the Veteran’s contentions that her acquired psychiatric disorder warrants a rating higher than 50 percent for the period at issue, the Board notes that while she is credible and competent to report on her observable symptoms, VA examinations conducted by trained medical professionals are more probative in determining the actual degree of occupational and social impairment. For the reasons stated above and given the absence of symptoms during this period such as 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; spatial disorientation; neglect of personal appearance and hygiene; and suicidal ideations, the Board finds against a 70 percent rating at any time prior to June 10, 2015. As such, a rating more than 50 percent is not warranted for the period prior to June 10, 2015. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine; however, as the preponderance of the evidence is against assignment of higher ratings, that doctrine is not applicable. 38 U.S.C. § 5107(b). 2. Entitlement to a total disability rating due to individual unemployability (TDIU) for the period prior to June 10, 2015. For VA purposes, total disability exists when there is any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (2017). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of such a rating is warranted if a Veteran has one service-connected disability rated 60 percent or more or, if there are two or more such disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. For the period prior to June 10, 2015, the Veteran was service-connected for major depressive disorder with anxiety disorder not otherwise specified (50 percent disabling); tinnitus, (10 percent disabling), folliculitis and dermatitis (10 percent disabling); chronic constipation (noncompensable); and dysmenorrhea (noncompensable). Her combined disability rating was 60 percent, effective April 27, 2013. She is thus not eligible for entitlement to a TDIU on a schedular basis, because there is no single disability rated 60 percent, and the ratings do not combine to 70 percent. Entitlement to a TDIU is warranted under 38 C.F.R. § 4.16(b) regardless of the Veteran’s disability ratings where the service-connected disabilities alone render her unemployable. The Board cannot grant a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must consider whether a remand for the Agency of Original Jurisdiction (AOJ) to refer the case to the Under Secretary for Benefits or the Director of Compensation is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). For the following reasons, the Board finds that a remand to refer is not warranted. According to the Veteran’s March 2016 VA Form 21-8940, she reported prior employment as a customer service representative at call center from 2007 to 2009, and employment as administrative specialist with the South Carolina Department of Labor from 2009 to 2012. The Veteran reported that she then worked as a computer lab manager with Sumter County School District from 2012 to 2014. She also reported that she has worked for 20 hours per week as a life insurance agent from September 2014 to the present. The Veteran stated that she has attempted to obtain additional employment since she became too disabled to work. She indicated that she has a master’s degree. The Veteran remarked that she has “numerous service-connected conditions that prevent full-time employment.” The Board acknowledges that Sumter County School District confirmed that the Veteran resigned on September 15, 2014. The insurance company reported that the Veteran last worked in July 2012 as an independent contractor and was paid commission if policies were sold. The Board observes that the Veteran underwent several VA examinations in July 2014. The examiner reported that the Veteran’s folliculitis negatively impacts her ability to work but her dysmenorrhea and constipation do not impact her ability to work. As discussed above, the July 2014 VA psychiatric examiner reported that the Veteran was presently employed with Sumter County School District and that the Veteran’s symptoms cause occupational and social impairment with reduced reliability and productivity. The Board further observes that the Veteran received additional VA examinations in August 2014. The examiner stated that the Veteran’s tinnitus does not impact her ability to work. The examiner also stated that the Veteran’s skin condition does not impact her ability to work. The above evidence reflects that the Veteran’s service-connected disabilities alone did not render the Veteran unable to obtain and maintain substantially gainful employment for the period prior to June 10, 2015. Importantly, the Veteran reported full-time employment through at least September 2014, with additional part-time employment to the present. Although the Veteran claims that her service-connected conditions prevent full-time employment, VA examination reports have repeatedly indicated she is able to perform sedentary work. After considering the totality of the record, the Board finds that for the period prior to June 10, 2015, the preponderance of the evidence reflects that the Veteran’s   service-connected disabilities alone did not preclude her from obtaining and maintaining substantially gainful employment. The benefit of the doubt doctrine is thus not for application and the claim must therefore be denied. 38 U.S.C. § 5107(b). MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel