Citation Nr: 18155826 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 17-00 258 DATE: December 6, 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 her 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; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. 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 in the United States Navy from February 2002 to February 2006. This matter comes before the Board from an April 2016 rating decision. 1. Entitlement to an increased disability rating of 70 percent, and no higher, for major depressive disorder is granted. 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). 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 July 2010. The VA examiner reviewed medical records, interviewed the Veteran, and conducted an in-person examination. The VA examiner noted that the Veteran’s major depressive disorder causes persistently low mood with anhedonia, insomnia, some crying, and loss of appetite. The Veteran stated that she was divorced and did not have custody of her young child. The VA examiner noted some paranoia, poorly organized, and at times, difficult to follow thoughts, and some impairment of recent memory. In December 2010, the Veteran was afforded a VA examination. The Veteran endorsed some irritability and anger outbursts. The examiner noted that the Veteran was moderately jumpy or easily startled. The Veteran reported issues with anxiety in relationships, particularly with men. She reported anxiety symptoms several times a day. In April 2012, the Veteran was afforded a VA examination. The examiner noted that the Veteran does have mental health diagnoses other than major depression, but that it was not possible to differentiate what symptoms are attributable to each diagnosis. The Veteran reported weekly nightmares and the examiner noted depressed mood, anxiety, panic attacks more than once a week, and disturbances of motivation and mood. The Veteran was provided a VA examination in August 2016. The Veteran reported that she had discontinued a dental hygienist program and an online fashion design program due to difficulty concentrating. The Veteran reported compulsive skin picking and the examiner observed open wounds. The Veteran reported her typical mood as depressed, energy levels as low, and feelings of worthlessness. She denied recent suicide attempts. The VA examiner summarized the Veteran’s level of occupational and social as impairment with reduced reliability and productivity. Medical records contain reports of suicidal thoughts without a plan or intent. The Veteran’s doctors have noted flattened affect, diminished ability to think, blackouts, and concentration and memory impairment. At a September 2011 appointment, the Veteran described her anxiety as overwhelming. She reported chronic feelings of worthlessness/low self-esteem. Veteran has exhibited issues with impulse control and decision making, including packing all her belongs to move before she had sold her current residence or bought another one. This caused her and her child to live in a home without many necessities for an extended period of time. An October 2011 note documents: intrusive recollections every day, nightmares, psychological and physiological reactivity to stimuli that reminds Veteran of trauma, avoidance of thoughts, conversations, and activities that remind Veteran of trauma, diminished interest in “going out,” irritability, and difficulty concentrating. The Veteran also displays trouble with keeping appointments. There are notes that the Veteran is frequently very late or very early to appointments as well as notations that the Veteran no showed appointments. For example, the Veteran failed to report for a in January 2011 VA examination. 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 to her providers suicidal ideations, without intent or plan. Such is in and of itself sufficient to warrant the assignment of a 70 percent rating. See Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Moreover, she reports limited interactions with people, though she does have a relationship with her child, having some friends, and some church attendance. The Veteran has difficulty in establishing and maintaining effective social relationships due to her paranoid behavior. She has not worked since 2009 and has not been successful in school programs due to poor concentration. The July 2010 examiner noted impaired memory and judgement and poorly organized thoughts. The August 2016 examiner noted obsessive behavior. The medical records indicate flattened affect, diminished ability to think, and irritability. However, the Board finds that the Veteran’s symptoms do not rise to the level of total occupational and social impairment. She lives with her child and reports having friendships. The fact that she cares and provides for her child, along with holding some friendships, belies the notion of there being total social impairment. Moreover, while she experiences some problems with memory and some problems with personal upkeep, 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. Overall, 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. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted. The Veteran contends that she is unable to secure or follow a substantially gainful occupation due to her 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 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). Irrespective of the decision made herein, the Veteran has met the schedular percentage requirements for a TDIU at all times during the relevant period because she 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 January 2017, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, indicating that she had graduated from high school and had some college education. The Veteran’s most recent employment was as a cosmetologist and she has a certificate in cosmetology. The Veteran’s service-connected disabilities cause her chronic pain and she has limited education and work experience. The majority of the Veteran’s work experience is in cosmetology and she has been unsuccessful in school or training programs due to symptoms of her major depressive disorder. The April 2013 VA Vocational counselor indicated that the Veteran lacks the necessary transferable skills to transition into suitable employment. It was concluded that the Veteran does have an employment handicap that is considered serious. Upon review of the record the Board concludes that the Veteran has a very narrow vocational profile due to her service-connected disabilities such that she is unable to secure or follow a substantially gainful occupation due to those factors. Specifically, the Veteran’s service-connected knee disabilities make it so she cannot stand for extended periods of time and causes pain walking and going upstairs. The Veteran’s service-connected gastro esophagal reflux disease (GERD) causes her to have to eat many small meals to control the acid; during an April 2013 VA vocational interview, it was noted that the Veteran had to eat during the interview. Additionally, the Veteran also reports that laying down offers the most relief from her symptoms and she does this frequently. As a result of her GERD, the Veteran’s abdomen is distended, bloated, and painful; she experiences pain when it is bumped or touched. This was causing problems for the Veteran when she was working as a hairdresser as her abdomen would be bumped and caused her a lot of pain. In addition to the difficulties created by the GERD, the Veteran is very anxious around men and she reported that it was difficult for her to work for men or have male clients. Her service-connected major depressive disorder causes her to have a flattened affect, and impaired judgment and memory. In view of the totality of the Veteran’s service-connected disabilities, education, and work history, the Board finds that it is unlikely the Veteran would be able to obtain and maintain substantially gainful employment due to her service-connected disabilities. 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 E. Rekowski, Associate Counsel