Citation Nr: 18147322 Decision Date: 11/05/18 Archive Date: 11/02/18 DOCKET NO. 15-13 607 DATE: November 5, 2018 ORDER An initial rating of 70 percent, but no higher, for major depressive disorder (MDD), is granted, subject to the laws and regulations governing the payment of monetary awards. A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Resolving all doubt in his favor, for the entire appeal period, the Veteran’s MDD manifested by symptomatology resulting in occupational and social impairment with deficiencies in most areas, without more severe manifestations that more nearly approximate total occupational and social impairment. 2. For the entire appeal period, the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating, but no higher, for MDD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1985 to June 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from October 2012 and June 2013 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. At such time, he submitted additional evidence in support of his claims. 38 U.S.C. § 7105(e)(1). The Board notes that, subsequent to the Board hearing, additional evidence, to include VA treatment records and VA examination reports, was associated with the record. However, in September 2018, the Veteran, through his representative, waived Agency of Original Jurisdiction (AOJ) consideration of such evidence. 38 C.F.R. § 20.1304(c). Therefore, the Board may consider the entirety of the evidence of record. The Board further observes that a May 2018 decision determined that a recoupment of the Veteran’s Special Separation Benefits was required. Thereafter, he entered a notice of disagreement as to such determination in June 2018. Although a statement of the case has not yet been issued, according to the Veterans Appeals Control and Locator System, the claim is still being developed by the AOJ. As a result, the Board declines jurisdiction over this issue until such time as an appeal to the Board is perfected. 1. Entitlement to an initial rating in excess of 50 percent for MDD. The Veteran contends his MDD is more severe than is reflected by the currently assigned 50 percent rating. In this regard, he contends he has numerous symptoms that are not contemplated under the criteria of a 50 percent rating and are more consistent with a higher rating, including suicidal ideation, near continuous depression, and impaired impulse control. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran’s service-connected MDD has been assigned a 50 percent rating, effective October 7, 2010, under the criteria of DC 9434, which provides that such disability is evaluated pursuant to the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. A 50 percent rating is warranted 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 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. Id. A 70 percent rating is warranted where there is 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 warranted when 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. The United States Court of Appeals for the Federal Circuit has held that the evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-117 (Fed. Cir. 2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms, but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation...requires an ultimate factual conclusion as to the Veteran’s level of impairment in most areas.” Vazquez-Claudio, 713 F.3d at 117-118; 38 C.F.R. § 4.130, DC 9434. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation 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). The Board notes that the revised DSM-5, which, among other things, eliminates GAF scores, applies to appeals certified to the Board after August 4, 2014, as is the case here. See 79 Fed. Reg. 45, 093 (Aug, 4, 2014). Consequently, the Board will not consider the previously assigned GAF scores in determining the outcome of this case. See Golden v. Shulkin, No. 16-1208 (February 23, 2018). By way of background, service connection for MDD was awarded in an October 2012 rating decision, which assigned an initial 50 percent rating based primarily on February 2012 and August 2012 VA examinations. In this regard, such examinations reflected that the Veteran’s MDD resulted in occupational and social impairment with reduced reliability and productivity. Specifically, at the February 2012 VA examination the Veteran reported chronic sleep impairment, having low energy and little appetite, low motivation, and little social interest. He was also noted to have crying spells, irritability, and suicidal thoughts daily, although he had never attempted suicide nor did he have current intention or plan. He lastly reported having balance problems as well as cognitive problems of poor concentration and memory. The examiner found that the Veteran’s MDD resulted in occupational and social impairment with reduced reliability and productive. Specifically, he noted social impairment of no local friends, irritability, low social tolerance, and a “frictive” [sic] relationship with his girlfriend and, with regard to occupational impairment, observed that the Veteran did not have a job and had a very violent temper. The Veteran then underwent two VA neuropsychology examinations in August 2012, which noted he had some cognitive impairment, but his intellectual abilities and memory were generally in the average range. The examiners also noted the Veteran had obtained an associate’s degree recently, which they concluded abrogated any cognitive impairment findings. Further, the Veteran was again noted to have suicidal ideation and a vague plan, but no current intent. He reported at both examinations that he was depressed and irritable, and frequently gets into arguments with the woman he lives with. The Veteran also indicated that he had no other social relationships. In this regard, he reported he avoids people in order to avoid inevitable confrontation. He further stated that he cycled through numerous jobs since he separated from service, and he maintained his chronic sleep impairment symptoms, which he believes caused him to fall asleep on job sites and be fired. The Veteran then underwent another VA psychiatric examination in September 2014. At such time, the examiner found that the Veteran’s MDD resulted in 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, which is consistent with a 10 percent rating under the General Rating Formula. In this regard, the examiner noted the Veteran’s diagnoses of MDD and traumatic brain injury (TBI), but could not differentiate which symptoms were attributable to each as they tend to overlap. He noted a psychological improvement since the last examination, only remarking on symptoms of depressed mood, anxiety, suspiciousness, and a disturbance in motivation and mood. The examiner further opined that the Veteran was not only capable of performing occupational tasks, but such work would likely help his symptoms. Notably, he found that the Veteran seemed to exaggerate his symptoms, and feign symptoms he did not actually have. The examiner indicated that, while the Veteran did in fact have MDD, it was not as severe as he made it seem. The Veteran most recently underwent a VA examination for his MDD in March 2018. At such time, the examiner identified the Veteran’s diagnoses of MDD and TBI, and endorsed a social and occupational impairment with reduced reliability, noting that the functional impairment caused by such disabilities could not be differentiated because they exacerbate and overlap with each other. However, he did note that the TBI caused the Veteran’s symptoms of memory impairment, poor concentration, and difficulty problem solving. The examiner further noted that the Veteran lived alone, did not have much interaction with his adult children, had strange sleep habits, and spent much of his days lying around. He observed that the Veteran was casually dressed and well groomed, visibly anxious, verbal and cooperative, and displayed symptoms of a depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, impairment of short and long term memory, flattened affect, disturbances in motivation and mood, difficulty in establishing relationships, inability to establish relationships, difficulty in adapting to stressful circumstances, and grossly inappropriate behavior. Finally, the examiner concluded by commenting on the occupational impact of his MDD, noting the Veteran’s symptoms significantly limited his ability to handle changes in work environment, increase his desire to flee work when dealing with unexpected events, reduces his ability to problem solve in times of crisis, greatly limits his ability to work closely with others, and the anxiety interfered with his ability to learn new tasks and remember delayed information. Based on the foregoing, the Board finds that an initial 70 percent rating, but no higher, is warranted for the Veteran’s MDD. In this regard, the Board notes that, at his most recent VA examination in March 2018, while the examiner endorsed only an occupational and social impairment with reduced reliability, the Veteran exhibited symptoms indicative of a more severe level of impairment. Notably, such symptoms included grossly inappropriate behavior, which is a symptom considered under a 100 percent rating, as well as an inability to establish relationships and difficulty in adapting to stressful circumstances, both symptoms contemplated under a 70 percent rating. Further, the Veteran has consistently reported, and was noted to have, suicidal ideation throughout the appeal period. In this regard, the Board notes that, while such symptom was not endorsed at the most recent VA examination, it was noted in every examination conducted prior to such time. Furthermore, the Veteran reported such symptom in numerous statements of record, and treatment records from January 2008 show a visit to the emergency department because of strong suicidal thoughts and a more recent neuropsychological evaluation from November 2014 indicates the Veteran was actively suicidal and felt he was always down. Moreover, given the frequency, consistency, and duration of such reports, the Board has no reason to doubt the veracity of his suicidal ideation. Thus, the Board finds that the Veteran has credibly reported suicidal ideation for the entirety of the appeal period. Importantly, the United States Court of Appeals for Veterans Claims (Court) recently indicated that suicidal ideation alone may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017) (the language of the regulation indicates that the presence of suicidal ideation alone, that is, a veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas). The Board also notes the Veteran’s reports of impaired impulse control, as evidenced by his periods of violence and inability to control his temper. In this regard, while such symptoms have not been consistently endorsed at VA examinations of record, lay statements of record, including from the Veteran and his significant others, show he has lost control of his temper and physically assaulted others, including waking his significant other in the middle of the night by choking her. Therefore, taking into account the entirety of the Veteran’s symptoms, and the resulting social and occupational impairment, the Board finds his MDD manifests in occupational and social impairment with deficiencies in most areas, warranting a 70 percent disability rating. The Board considered whether a higher 100 percent rating was warranted; however, the Veteran does not exhibit symptoms of a duration or severity to warrant such a rating. Specifically, he only has been noted to exhibit one symptom contemplated by a 100 percent rating during one examination, and at such time the examiner found that the totality of the Veteran’s symptoms only resulted in an occupational and social impairment with reduced reliability and productivity. Moreover, the Veteran has maintained some personal relationships throughout the period on appeal. Thus, while he experiences great social impairment due to his psychiatric symptoms, such does not result in total impairment. The Board has considered whether staged ratings under Fenderson, supra, are warranted for the Veteran’s service-connected MDD; however, the Board finds that his symptomatology related to such disabilities has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Neither the Veteran nor his representatives have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. 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). In adjudicating the Veteran’s claim for a higher initial rating for his MDD, the Board has resolved all doubt in his favor, which has resulted in an award of a 70 percent rating. However, to the extent that a higher rating is denied herein, the Board finds that the preponderance of the evidence is against such aspect of the Veteran’s claim. Consequently, the benefit of the doubt doctrine is not applicable in such regard, and the Veteran’s claim for a higher rating is otherwise denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU. As an initial matter, the Board notes that the Veteran’s claim for a TDIU was originally raised in connection with a claim for an increased rating for his service-connected TBI; however, he subsequently contended that his service-connected MDD also precluded substantially gainful employment. Therefore, the Board finds that the Veteran’s claim for a TDIU extends from his original October 7, 2010, claim for MDD. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran contends that his service-connected disabilities of MDD, residuals of a TBI, migraine headaches, and vertigo preclude securing and following substantially gainful employment. In this regard, while he is also service-connected for other disabilities, it is his contention that the aforementioned disorders primarily preclude employment. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App.447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The sole fact that a claimant 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. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As an initial matter, the Board notes that the Veteran meets the schedular criteria for a TDIU throughout the appeal period stemming from his October 7, 2010, claim. In this regard, by virtue of this decision, he is service-connected for MDD, evaluated as 70 percent, effective October 7, 2010; TBI, evaluated as 10 percent effective February 17, 2011, and 40 percent effective July 22, 2014; migraine headaches, evaluated as 50 percent effective December 3, 2013; and vertigo, evaluated as 50 percent effective July 22, 2014, which results in, at the very least, a combined 70 percent rating throughout the appeal period. Therefore, the remaining inquiry is whether such disabilities render the Veteran unable to secure or follow a substantially gainful occupation In this regard, as noted above, the Veteran obtained an associate’s degree in general studies in 2010. Importantly, however, the Veteran had previously earned most of the credits for such degree before he enlisted in the military. As such, the use of such a degree to show his cognitive symptoms are not as severe as he contends is inappropriate. Turning to his work history, the Veteran worked in numerous positions as a factory worker or machine operator from 1993 until 2004, including a 6-year stint with one company. The Veteran’s positions were otherwise short-lived and generally ended in termination. He has not worked since 2004, at which point he was incarcerated for a felony offense. He has since been incarcerated again for a felony offense, also prior to the period on appeal. The Veteran testified that he had tried to obtain work since he was last employed with no success, and indicated that employers are unwilling to hire him because of his felony offenses. Regardless, in addition to the impairment discussed in the previous section referable to his MDD, the Veteran’s psychiatric symptoms are exacerbated by his TBI residuals, headaches, cognitive decline, and imbalance (rated as vertigo). With regard to symptoms and impairment directly attributable to the TBI, the Veteran was found to have only mild symptoms of subjective memory loss and sleep difficulties, with no motor problems, on a July 2012 VA examination. The Veteran was again noted to have only subjective memory problems during a January 2014 VA examination; however, at such time he was also noted to have headaches and imbalance problems associated with his TBI. The headaches were noted to occur once a week for 30-60 minutes, and are prostrating in nature with photo and phono sensitivity. Shortly after the prior VA examination, the Veteran underwent another VA examination for his TBI in November 2014. At such time, his TBI residuals were noted to have gotten worse, and included objective evidence of memory impairment, occasional disorientation to one aspect of orientation, three or more subjective symptoms that interfere with work, and neurobehavioral effects of irritability with depression symptoms overlapping. Moreover, his headaches were noted to occur every couple of days with prostrating attacks on average of about once a month. Importantly, at such examination, he was diagnosed with benign paroxysmal positional vertigo, resulting in dizziness 1-2 times a day lasting a few seconds to a minute. He states that he feels dizzy from a sitting to standing position and/or during walking. He also noted that he had been walking with assistance of a cane for the past 3 years due to an imbalance in gait. The examiner noted that such symptoms do not affect his employment, but also noted that he was not employed. Most recently, the Veteran underwent another VA examination for TBI in March 2018. At that time, his TBI symptoms were noted to impair his ability to quickly learn new information or skills, slow his ability to problem solve and see crisis situations clearly, lower his ability to handle time pressure in the workplace, and increase his risk for anger outbursts when frustrated. He was noted to have mild memory loss, mildly impaired judgment, social interaction occasionally inappropriate, and three or more subjective symptoms (recurrent headaches, excessive fatigue, and frequent sleep problems). Around the same time, his headaches were also evaluated in a February 2018 examination. The examiner noted that his headache symptoms had improved since the last examination. Specifically, the Veteran now controlled his headaches with medication, and they only last 5-10 minutes, and when they cause light sensitivity he has to lay down, which only occurs three to four times a year. The examiner noted they do not affect employability as they do not last more than 30 minutes. In February 2018, the Veteran’s imbalance symptoms were also separately evaluated. At that time, the examiner opined that the former diagnosis of vertigo should be changed to orthostatic hypotension and staggering, and such is a progression of his previous disorders. The Veteran was noted to have increasing difficulty walking with his cane. The examiner indicated that he would have difficulty in any job where he must stand or move around throughout the day, but sitting work would be fine. In addition to the foregoing, the record reflects that the Veteran was awarded disability benefits from the Social Security Administration (SSA) based on diagnoses of mood or affective disorder and anxiety related disorder as of December 1, 2007. In this regard, while SSA determinations are not binding on VA, such determination is consistent with the level of impairment associated with the Veteran’s MDD as documented in this decision. The question of employability is ultimately a legal one, not a medical one. The evidence, as described and discussed above, clearly shows that the Veteran is not able to maintain the type of employment consistent with his education and employment history due to his service-connected disabilities. In this regard, the Board acknowledges the fact that the Veteran may not have been able to secure work because of his criminal record; however, such is irrespective to the question of whether his service-connected disabilities would preclude substantially gainful employment. The record reflects that the Veteran has only ever worked in physical labor positions, which have been nearly precluded because of the imbalance and staggering residuals which requires the use of a cane. Further, the Veteran’s MDD, while in and of itself does not warrant a total disability rating under the ratings schedule, does significantly limit the employment he could obtain. Notably, he has attributed most of his previous terminations to manifestations of such disorder while on the worksite, primarily his chronic sleep impairment. However, the Board also finds his irritability, inability to establish relationships, and violent outbursts weigh heavily against his ability to secure or maintain gainful employment. Further, such determination is consistent with SSA’s finding. Additionally, the Veteran’s headaches, while recently improved, have waxed and waned throughout the appeal period, and when flaring up they would serve to further intensify his already impaired function. Therefore, based on the analysis above and resolving all doubt in the Veteran’s favor, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Therefore, a TDIU is warranted for the entire appeal period. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jonathan M. Estes, Associate Counsel