Citation Nr: 18147260 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 16-28 248 DATE: November 5, 2018 ORDER Entitlement to an increased disability rating of 70 percent, and no higher, for major depressive disorder is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the entire appeal period the Veteran’s service-connected major depressive disorder was manifested by a level of functional impairment most closely approximating occupational and social impairment with deficiencies in most areas, including work, family relations, judgment, thinking, and mood. 2. The evidence reflects that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 70 percent, but no higher, for major depressive disorder, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2017). 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1999 to November 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal of a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The Veteran’s claims file is currently under the jurisdiction of the St. Petersburg, Florida RO. Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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. Where there is a question as to which of two 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). 1. Entitlement to an Increased Rating for Major Depressive Disorder The Veteran’s service-connected major depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code 9434, and the General Rating Formula for Mental Disorders. Relevant to the issue on appeal, under the General Rating Formula for Mental Disorders, a 50 percent rating is assigned for 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. A 70 percent rating is assigned 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. A maximum 100 percent rating is assigned 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. The psychiatric symptoms listed in the above rating criteria are not exclusive, but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, consideration is given to all symptoms of the Veteran’s major depressive disorder that affect the level of occupational and social impairment. Turning to the relevant evidence of record, the Veteran was provided a VA examination in August 2011. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted that the Veteran’s major depressive disorder causes daily depression, consistent depressed mood, anhedonia and anergia, and that the Veteran feels hopeless and worthless. The Veteran stated that he was separated from his wife and had had no contact in the past two to three years, has poor rapport with his father and siblings and has no close friends. The VA examiner noted symptoms of depressed mood, chronic sleep impairment, flattened affect, 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 worklike settings. The VA examiner summarized the Veteran’s level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. An August 2012 VA psychiatry note reflects that the Veteran’s mood was “OK”, he was depressed and anxious. The Veteran had no acute suicidal/homicidal/assaultive thoughts, intent, or plan. However, the Veteran endorsed intermittent nonspecific thoughts of suicide. Upon examination, the Veteran had good grooming and hygiene. His speech was fluent and spontaneous. The Veteran did not endorse hallucinations or perceptual disturbances. He was alert and oriented to all spheres. A September 2013 letter from the Veteran’s VA psychiatrist reflects that the Veteran has adhered to his treatment plan but there have been multiple depressive recurrences. The VA psychiatrist opined that due to his major depressive disorder, the Veteran is unemployable. The Veteran was provided a VA examination in November 2013. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he was recently divorced from his wife and that he had no current relationship with his sister. The VA examiner noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, 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 a worklike setting. Additionally, the VA examiner noted symptoms of low self-esteem, pessimistic thoughts and intermittent suicidal thoughts. The VA examiner summarized the Veteran’s level of occupational and social impairment with reduced reliability and productivity. The Veteran was provided a VA examination in September 2014. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The Veteran reported that he currently lives with a friend and has been involved in a romantic relationship for the last eighteen months. Additionally, the Veteran reported that he has maintained a relationship with one older brother but denied having any close friends. He reported that he stopped attending classes because focus and concentration have made school difficult. The VA examiner noted current symptoms of poor focus and concentration, suicidal ideation, daily depressed mood, anhedonia, irritability, insomnia, daytime fatigue, feelings of uselessness and worthlessness and ruminative thoughts. Upon examination, the Veteran appeared depressed. His memory recall was mildly impaired and his concentration was impaired. He was neatly dressed and groomed and his orientation was within normal limits. The Veteran’s judgment and insight were adequate. The Veteran admitted to experiencing suicidal ideations a few times a month with thoughts of a plan. The VA examiner summarized the Veteran’s level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran was provided a VA examination in October 2016. The VA examiner reviewed the record, interviewed the Veteran and conducted an in-person examination. The VA examiner noted symptoms of depressed mood, anxiety, panic attacks more than once a week, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideation and intermittent inability to perform activities of daily living. Upon examination, the Veteran’s personal hygiene was limited as he appeared unshaven and somewhat disheveled. His speech was flat and he was oriented to all spheres. The Veteran reported difficulties with short-term memory. His mood and affect were flat, invariant and depressed. The VA examiner summarized the Veteran’s level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The totality of the evidence supports the assignment of a 70 percent rating for the Veteran’s service-connected major depressive disorder for the entire appeal period. The Veteran has consistently reported suicidal ideations. He further reported that he has poor rapport with his family and no close friends. The Veteran has difficulty in establishing and maintaining effective work and social relationships and difficulty in adapting to stressful circumstances, including work or a worklike setting. The September 2014 and October 2016 VA examiners noted the Veteran had impaired memory and concentration. The October 2016 VA examiner noted that the Veteran appeared unshaven and somewhat disheveled. Additionally, the August 2011, September 2014, and October 2016 VA examiners summarized the Veteran’s level of occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Board has considered whether the Veteran is entitled to a higher disability rating under the relevant rating criteria. However, the Board finds that the Veteran’s symptoms do not rise to the level of total occupational and social impairment. Although the Veteran’s relationship with wife and family were strained during the period at issue, the Veteran was able to maintain those relationships. He was able to attend psychiatric and medical treatment visits. Moreover, the record does not reflect that the Veteran experienced gross impairment of thought process or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting herself or others, or memory loss for names of close relatives or other such familiar information. The Board acknowledges that at the October 2016 VA examination, the Veteran appeared unshaven and somewhat disheveled. The Veteran has also exhibited deficiencies in memory at times. However, the Veteran has at most times during the period at issue been fully oriented with adequate appearance and normal memory functioning. Furthermore, the Board again notes that the rating criteria are not exclusive, but rather examples of typical symptoms for the listed percentage ratings. Mauerhan, 16 Vet. App. 436. Overall, the Veteran’s psychological symptoms most closely approximate the frequency, severity, and duration contemplated by the relevant 70 percent rating criteria, despite occasional, temporary symptoms that may have approximated the severity contemplated by the relevant 100 percent rating criteria. In the absence of frequent or prolonged symptoms of the severity contemplated by the relevant 100 percent rating criteria, the Board finds that the Veteran was entitled to a 70 percent rating, and no higher. See Mauerhan, 16 Vet. App. 436; see also Vasquez-Claudio, 713 F.3d at 117. 2. Entitlement to a TDIU The Veteran contends that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. A TDIU may be granted where a Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or higher. 38 C.F.R. §§ 3.340, 3.341, 4.16 (a). In determining whether a TDIU is warranted, consideration may be given to a Veteran’s level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a veteran is capable of securing or following a substantially gainful occupation is placed on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); see also 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran has met the schedular percentage requirements for a TDIU at all times during the relevant period because he has had one disability rated at least 40 percent disabling with sufficient additional service-connected disability to bring the combined rating to 70 percent or higher throughout that period. In September 2013, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, indicating that he has one year of college education with no additional training, that he last worked as a truck driver in June 2008, and that he believes his service-connected sleep apnea and major depressive disorder prevent him from securing or following any substantially gainful occupation. Upon review of the record the Board concludes that the Veteran has a very narrow vocational profile due to his service-connected disabilities such that he is unable to secure or follow a substantially gainful occupation due to those factors. Specifically, the August 2011, September 2014 and October 2016 VA examiners noted that the Veteran has difficulty in establishing and maintaining effective work and social relationships and that the has difficulty in adapting to stressful circumstances, including work or a worklike setting. Additionally, a September 2013 letter from the Veteran’s VA psychiatrist reflects that the Veteran has been adherent to his treatment plan but there have been multiple depressive recurrences and that due to his major depressive disorder the Veteran is unemployable. In view of the above, the Board finds that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The Veteran’s major depressive disorder limits his ability to establish and maintain effective work relationships and causes difficulty in adapting to stressful circumstances. Additionally, as noted above, the Veteran’s service-connected major depressive disorder causes panic attacks more than once a week, chronic sleep impairment, and memory loss. Moreover, the September 2013 VA psychiatrist’s letter reflects that the Veteran has required inpatient admission due to his service-connected major depressive disorder; thus, the Veteran would miss significant periods of work. In essence, the Veteran would need to work at his own pace and be excused for frequent and unscheduled absences. Such accommodations are not generally found in the competitive workforce. As such, in view of the Veteran’s service-connected disabilities, education, and work history, the Board finds that he would require a sheltered environment that would accommodate his substantial limitations. Such work constitutes marginal employment, which cannot be considered substantially gainful employment. See 38 C.F.R. § 4.16(a). The Board concludes that the probative evidence of record demonstrates that the Veteran is unable to secure or follow a substantially gainful occupation due solely to his service-connected disabilities. As such, the evidence is at least at equipoise as to whether the Veteran is entitled to a TDIU. Entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b). MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. G. LeMoine, Associate Counsel