Citation Nr: 18159151 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 11-23 569 DATE: December 18, 2018 ORDER Entitlement to a higher disability evaluation of 50 percent for service-connected psychiatric disability prior to March 1, 2016 is granted. The Veteran’s appeal as to the issue of entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to January 1, 2015 is dismissed. Entitlement to a TDIU due to service-connected disabilities beginning January 1, 2015 is granted. FINDINGS OF FACT 1. Prior to March 1, 2016, the Veteran’s symptoms more nearly approximated the symptomatology associated with a 50 percent rating. 2. In July 2018, the Veteran withdrew his appeal as to the issue of entitlement to a TDIU due to service-connected disabilities prior to January 1, 2015. 3. From January 1, 2015, the evidence persuasively shows that the Veteran’s service-connected disabilities preclude him from obtaining and retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability evaluation of 50 percent for service-connected psychiatric disability prior to March 1, 2016 have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2017). 2. The criteria for withdrawal by the Veteran of his Substantive Appeal on the issue of entitlement to a TDIU due to service-connected disabilities prior to January 1, 2015 have been met. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for entitlement to a TDIU due to service-connected disabilities from January 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran appellant was a member of the United States Navy Reserve and completed an initial period of active duty for training (ACDUTRA) from November 1986 to April 1987. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado. In January 2017, the Veteran presented testimony at a Board videoconference hearing conducted before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. The Board remanded this case in May 2017 for further development. The case has now been returned to the Board for further appellate action. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2 (2017); resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3 (2017); where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7 (2017); and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10 (2017). Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath at 594; See also 38 C.F.R. §§ 4.1, 4.2. The Veteran is seeking an increased rating for his service-connected major depressive disorder which is currently rated in accordance with the criteria set forth in the Schedule for Rating Disabilities, 38 C.F.R. Part 4, Diagnostic Code 9434 (2017) as 30 percent. A 50 percent evaluation 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 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; difficulty in establishing and maintaining effective work and social relationships. Furthermore, as the United States Court of Appeals for the Federal Circuit recently explained, 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. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (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 at 117-18; 38 C.F.R. § 4.130, DC 9411. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall 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). Furthermore, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126 (b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. 1. Entitlement to a disability evaluation in excess of 30 percent for service-connected psychiatric disability prior to March 1, 2016 In a July 2018 statement, the Veteran further set forth his contentions for why he believed he was entitled to an earlier effective date for his assigned 50 percent rating. See July 2018 statement (“I am seeking an earlier date for the 50% Major Depression rating as I believe I will prove that the Major Depression had set in earlier then [sic] the date I was granted March 2016.”) After a review of the Veteran’s treatment records and the findings contained in the VA examination reports, the Board finds that the impact of the Veteran’s service-connected psychiatric disability on his occupational and social functioning probably more nearly approximated the criteria under a 50 percent rating. Accordingly, the Board finds that the Veteran is entitled to a 50 percent rating prior to March 1, 2016. TDIU The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is 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 are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In circumstances where a Veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Marginal employment is not considered substantially gainful employment and is deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. In reaching such a determination, 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, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). From January 1, 2015, the Veteran’s major depressive disorder is rated as 30 percent effective February 13, 2002 (and 50 percent during the course of the appeal as the result of the decision herein); cervical strain with degenerative changes is rated as 40 percent effective July 5, 2000; degenerative joint and disc disease, thoracolumbar spine is rated as 20 percent effective February 8, 1999; and right upper extremity radiculopathy is rated as 20 percent effective September 30, 2011. The combined disability rating is at least 70 percent from May 1, 2012, 80 percent from February 10, 2016, and 90 percent from July 3, 2017. As such, the Veteran meets the minimum rating requirements of 38 C.F.R. § 4.16(a). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to January 1, 2015 Generally, the Board’s jurisdiction is predicated upon an appeal having been filed on an issue in controversy. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 19.7, 20.101. An appeal consists of a timely filed notice of disagreement (NOD) in writing, and, after a Statement of the Case (SOC) has been furnished, a timely filed Substantive Appeal. 38 U.S.C. § 7105, 38 C.F.R. § 21.200. Under 38 U.S.C. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (c). In a July 2018 written statement, the Veteran stated he was not seeking unemployability or major depression benefits prior to January 2015 as he still had some work left in him when he initially filed in 2011. He repeated in the July 2018 written statement that he was not seeking unemployability benefits prior to January 2015. Therefore, the Veteran’s appeal for the issue of entitlement to a TDIU prior to January 1, 2015 is withdrawn. See 38 C.F.R. § 20.204. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability from January 1, 2015 The Veteran reports that his back, pain, and depression render him unable to work. See December 2010 Veteran’s Application for Increased Compensation based on Unemployability. The Veteran’s work history shows that he has worked as a self-employed photographer from 2003 to present. See August 2018 VA Mental Disorders Examination. The Veteran has a bachelor’s degree in broadcasting. See November 2010 Veteran’s Application for Increased Compensation based on Unemployability. The February 2016 VA neck conditions examiner opined that the Veteran’s service-connected neck condition impacted his ability to work. He cannot perform tasks that involve movements such as bending, leaning, reaching, and twisting. The Veteran is restricted to lifting 20 pounds. The Veteran reported he sits and plays video games most of the day and therefore can perform sedentary desk or computer work. The March 2016 VA mental disorders examiner opined that the Veteran can work in a loosely supervised setting that does not require interaction with the public. The Veteran manages his own professional photography business, including travel to locations throughout the country. He is able to bill at a significant rate for his services. The Veteran stated that his mental health condition has impacted his ability to do the job and he does not want to do the job due to his mental health condition. See Transcript of January 2017 Board Hearing at 8. He related that his self-business has declined in the last few years. Id. at 10. The Veteran has been unable to run his company since sometime in 2014. See July 2018 Veteran Statement. He stated that he cannot concentrate and stay focused for periods much longer than 30 minutes, and work that usually takes a day now takes 40 hours to complete. Id. People tend to irritate him and cause him anxiety. Id. The Veteran stated he only works a couple days a month doing seasonal work. Id. In a July 2018 statement, the Veteran set forth in vivid details how his mental and physical service connected disabilities impact his functioning. An August 2018 VA examination stated the Veteran works as a seasonal architectural photographer, but has a hard time working. The Veteran indicated that 2018 would likely be his last year working. In VA Form 646 dated in September 2018, the Veteran’s representative highlighted that the Veteran had attempted to maintain employment over the last few years, but when he did work his back would flare up and result in additional missed work time. He had provided his last three years’ tax returns which document his decreasing income ($18,348.00 for 2015, $12,520.00 for 2016, and $9,125.00 for 2017). In 2015, the poverty threshold for two adults and one child was $19,078. See https://www.census.gov/data/tables/time-series/demo/income- poverty/historical-poverty-thresholds.html. In 2016, the poverty threshold for two adults and one child was $19,318. See https://www.census.gov/data/tables/time-series/demo/income- poverty/historical-poverty-thresholds.html. In 2017, the poverty threshold for two adults and one child was $19,730; for two adults, $16, 414. See https://www.census.gov/data/tables/time-series/demo/income- poverty/historical-poverty-thresholds.html. Thus, despite working, the Veteran's income falls below the poverty threshold. Based on all of the foregoing, the Board finds that it is factually ascertainable that the Veteran has not been able to engage in substantially gainful employment beginning January 1, 2015. Accordingly, a TDIU is warranted effective January 1, 2015. (continued on next page) TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Alexia E. Palacios-Peters, Associate Counsel