Citation Nr: 18155527 Decision Date: 12/04/18 Archive Date: 12/04/18 DOCKET NO. 16-00 032 DATE: December 4, 2018 ORDER Entitlement to an initial rating of 70 percent, but no higher, for major depressive disorder is granted, subject to the laws and regulations governing monetary benefits. Entitlement to a total disability based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the laws and regulations governing monetary benefits. FINDINGS OF FACT 1. The Veteran’s major depressive disorder is manifested by depressed mood, impairment of short and long-term memory, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, suicidal ideation, and the intermittent inability to perform activities of daily living resulting in occupational and social impairment with deficiencies in most areas. 2. The Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating of 70 percent, but no higher, for major depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Air Force from June 1983 to December 1992. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in July 2012 by a Department of Veterans Affairs (VA) Regional Office. The Veteran was afforded a hearing before a Decision Review Officer in July 2015 and a transcript of that hearing has been associated with the record. Additionally, while the Veteran requested a Travel Board hearing on her December 2015 Form 9, the Veteran’s representative withdrew the request in an October 2018 written correspondence. Additional evidence was received with the October 2018 written correspondence; however, as such was accompanied by a waiver of Agency of Original Jurisdiction consideration, the Board may proceed with appellate review. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. See 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Once the evidence has been assembled, it is the Board’s responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating in excess of 50 percent for major depressive disorder The Veteran and her representative have asserted that the severity of her major depressive disorder symptoms warrant an initial rating in excess of 50 percent. The Veteran’s major depressive disorder is currently evaluated as 50 percent disabling throughout the appeal period under 38 C.F.R. § 4.130, Diagnostic Code 9434. Diagnostic Code 9434 provides a 50 percent evaluation 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; the Veteran’s difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent disability evaluation is warranted when 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 work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent disability evaluation 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 of the Veteran to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time and place; memory loss for names of close relatives, own occupation, or own name. Id. The use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. The use of such terminology permits consideration of items listed and other symptoms and additionally contemplates the effect of those symptoms on the Veteran’s social and work situation. See Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board acknowledges that symptoms recited in the criteria in the rating schedule for evaluating mental disorders are “not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.” Id. at 442. In adjudicating a claim for a higher rating, the adjudicator must consider all symptoms of a claimant’s service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. The Veteran was first afforded a VA examination in connection with her claim in July 2011. During that examination, the Veteran endorsed symptoms such as depressed mood, lack of energy, disturbances of motivation and mood, short and long-term memory impairment, and suicidal ideation without intent. See July 2011 VA examination. The Veteran did not present with panic attacks, delusions, hallucinations, or illogical speech, and she was oriented to time and place. With respect to the Veteran’s suicidal ideation, the VA examiner noted that she was not an imminent threat to herself or others. Overall, the VA examiner concluded that the Veteran’s depression manifested as occupational and social impairment with reduced reliability and productivity. Id. Preceding the Veteran’s next VA examination in February 2016, the Veteran received relatively consistent treatment for her depression. During this time, the Veteran’s mental status examinations were consistently noted to be normal, she was usually noted to not have any suicidal or homicidal ideations, and her symptoms were noted to be well-controlled with medication. See post-service treatment records dated December 2012, May 2014, June 2014, July 2014, August 2014, September 2014, October 2014, April 2015, and June 2015. However, the Veteran continued to endorse depressive symptoms. She also had an instance where she endorsed passive thoughts of death and that she believed that her family “would be better off” without her. See post-service treatment records dated February 2014. She also had a period of intensive in-patient mental health treatment in October 2011, at which time she endorsed similar symptoms as noted during her July 2011 VA examination. Additionally, the Veteran testified before a Decision Review Officer in July 2015, where she endorsed the depressive symptoms as outlined above and again indicated chronic suicidal ideation. The Veteran next was afforded a VA examination in February 2016, and the Veteran endorsed similar symptoms as she did during her July 2011 VA examination and she stated that her depression remains at a similar to level to which was endorsed back in 2011. Those symptoms include but are not limited to, depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, suicidal ideation, and intermittent inability to perform activities of daily living. See, February 2016 VA examination. The Veteran was noted to have appropriate grooming and hygiene, was friendly and cooperative, and had no significant impairment of insight or judgement. The VA examiner concluded that the Veteran’s depressive disorder was manifested by occupation and social impairment with reduced reliability and productivity. However, of note, the Veteran indicated chronic passive suicidal ideations, occasionally with plans, and that she makes a daily commitment to avoid suicidal behavior. The Veteran also stated that she has two close girlfriends and a good relationship with her family, but prefers to be alone. Further, the Veteran experiences depressive episodes 3-4 days per week where she does not want to leave the home or engage in any activities. Id. Following the Veteran’s February 2016 VA examination, the Veteran continued to receive mental health treatment. Again, while she had multiple instances where her mental status examinations were normal, there was also several instances of suicidal ideation, to include one instance where the Veteran had a plan to follow through with her ideation. She was flagged as high risk for suicide in January 2018, although the record indicates there was no persistent danger of the Veteran following through and actually harming herself or others. See, post-service treatment records dated July 2016, August 2016, October 2016, March 2017, May 2017, July 2017, August 2017, November 2017, and January 2018. In January 2018, the Veteran was hospitalized for an attempted suicide attempt and received in-patient treatment for several days. Following the Veteran’s discharge, she continued to receive out-patient mental health treatment and endorsed significant depressive symptoms, but was found to be a low risk for imminent suicide based on her support from family, church, and her future-oriented thought process. See post-service treatment records dated January 2018. The Veteran was evaluated by a private psychologist via-videoconference in October 2018. Following a review of the Veteran’s record, the private psychologist opined that the Veteran’s depressive disorder manifested itself as total social and occupational impairment. In coming to this conclusion, the psychologist relied on the symptoms that the Veteran endorsed during her previous VA examinations, her post-service treatment records, and her videoconference interview with the Veteran in which the Veteran endorsed similar symptoms as those reported throughout the period on appeal. The private psychologist noted that the Veteran’s symptoms have remained severe and persistent since she was first evaluated. While the Board agrees that the Veteran’s major depressive symptoms, such as depressed mood, disturbances in motivation and mood, inability to establish and maintain effective relationships, and suicidal ideation are severe, the Board finds the Veteran’s major depressive disorder does not result in total occupational and social impairment. Specifically, the Veteran does not have gross impairment in thought process or communication, persistent delusions or hallucinations, disorientation to time or place, memory loss for names of close relatives, own occupation, or own name, or persistent danger of hurting self or others. While the Board acknowledges the Veteran’s suicidal ideations with occasional plan, the Veteran was also consistently noted to be a low suicidal risk due to her family support, church support, and future thinking and thought processes. Additionally, while the Veteran was noted to have intermittent inability to perform activities of daily living, the Veteran was also noted to have a normal mental status examination on many occasions, maintained her hygiene, was working part-time as of January 2018, volunteered with Meals on Wheels, and maintained a close relationship with her family. Accordingly, based on the above, the Board finds that the totality of the medical evidence of record indicates the Veteran’s major depressive disorder was manifested by occupational and social impairment with deficiencies in most areas due to her psychiatric symptomatology, without more severe manifestations that more nearly approximated total occupational and social functioning. As such, the criteria for a rating of 70 percent, but no higher, have been met throughout the appeal period for major depressive disorder. 2. Entitlement to a TDIU Total disability ratings for VA compensation purposes 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). However, if the percentage ratings of 38 C.F.R. § 4.16(a) are not met but the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, an “extraschedular TDIU” may be assigned and the case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. 38 C.F.R. § 4.16(b). In determining entitlement to a TDIU, the central inquiry is whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by his employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background, but not age. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. The Veteran and her representative assert she is unable to secure or follow substantially gainful employment as a result of her service-connected disabilities. The Veteran’s service-connected disabilities for the pertinent period include: major depressive disorder now at 70 percent for the entire pendency of the appeal, migraine headaches at 50 percent, bronchial asthma at 30 percent, and right thumb strain, post ligament damage and repair at 0 percent. The Veteran’s combined disability rating is now 90 percent. Accordingly, the Veteran meets the percentage requirements for a TDIU throughout the pendency of the appeal. Following her discharge from active duty, the Veteran worked as a day care provider from 1996 until 1998 and worked in child development from 1998 until 2001, when, according to the record, she was forced to quit because of the strain of her multiple health issues, to include her service-connected disabilities. The Veteran has an Associate’s degree in child development and completed her Bachelor’s degree. In July 2011, the VA examiner indicated that the Veteran’s right thumb strain resulted in a limited use of the right hand for work-related activities and that her migraine disability resulted in decreased activity levels during migraine headaches. The VA examiner did note that the Veteran’s non-service-connected disabilities also impacted her ability to secure and follow substantially gainful employment because of the daily pain that limited her activities. During her February 2016 VA examination, however, the examiner noted that the Veteran is unable to predict her emotional state from day-to-day, leading to fear of educational and employment opportunities as she is sometimes unable to leave the home during a major depressive episode. Further, the private psychologist that examined the Veteran in October 2018 indicated that the limitations caused by the Veteran’s service-connected major depressive disorder would make it difficult for the Veteran to interact with others, stay on task at work, and be reliable and effective in a competitive work environment. While the evidence shows the Veteran was working part-time at a gas station as of January 2018, the Board finds this employment does not constitute substantially gainful based on the Veteran’s educational and previous work history. Overall, the Board notes the evidence indicates that both service-connected and non-service-connected physical disabilities preclude the Veteran from obtaining and maintaining substantially gainful employment. However, the Board finds the Veteran’s psychiatric symptoms alone, as noted above, severely limit the Veteran’s ability to obtain and maintain any substantially gainful employment. Accordingly, the Board finds that the criteria for a total disability rating based on individual unemployability due to service-connected disability have been met. M. M. Celli Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Daugherty, Associate Counsel