Citation Nr: 18159161 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-50 431 DATE: December 19, 2018 ORDER For the entire period on appeal, a 70 percent rating for depression is granted. Entitlement to a total rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the service-connected depression has resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas. 2. The service-connected disabilities have rendered the Veteran unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for disability rating of 70 percent, but no higher, for depression have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code (DC) 9434 (2017). 2. The criteria for an award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(b) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to September 1995. In October 2018, the Board solicited from the Veteran a waiver of AOJ consideration for evidence submitted subsequent to the September 2016 statement of the case. Initial Rating for Depression The current appeal arises from a claim of entitlement to service connection for depression that was received by VA on August 19, 2015. In a November 2015 rating decision, VA granted service connection for depression, assigned an initial disability rating of 50 percent under Diagnostic Code 9434, and assigned an effective date of August 19, 2015. The Veteran asserts that his service-connected psychiatric disorder is worse than the currently assigned 50 percent disability rating. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (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); Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Rating Criteria The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (General Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under the General Rating Formula, a 50 percent rating is warranted 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; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted if the evidence establishes 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); and/or inability to establish and maintain effective relationships. Id. A 100 percent rating (total occupational and social impairment) is warranted 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. When determining the appropriate disability evaluation to assign, the Board’s primary consideration is the Veteran’s symptoms, but it must also make findings as to how those symptoms impact a Veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The use of the term “such as” in the rating criteria demonstrates that the symptoms after that phrase 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. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Thus, the Board need not find the presence of all, most, or even some, of the enumerated symptoms to award a specific rating. Id. at 442. Nevertheless, all ratings in the general rating formula are also associated with objectively observable symptomatology and the plain language of the regulation makes it clear that the Veteran’s impairment must be “due to” those symptoms; a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. The Board recognizes that the United States Court of Appeals for Veterans Claims (Veterans Court) in Mauerhan, 16 Vet. App. 436, stated that the symptoms listed in VA’s general Rating Formula for mental disorders is 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; however, the Veterans Court further indicated that, without those examples, differentiating between rating evaluations would be extremely ambiguous. Rating Analysis For the entire initial period on appeal, beginning August 19, 2015, the Veteran’s depression is rated as 50 percent disabling. For the reasons expressed below, the Board finds that the Veteran’s depression more nearly approximate occupational and social impairment with deficiencies in most areas, which warrant a 70 percent disability rating. During an August 2015 private initial psychiatric assessment, it was noted that the Veteran was depressed and sad over his physical limitations and the impact those had on his quality of life. Specifically, he stated that his back pain was a “great source of frustration” for him. He further noted that he experienced anger outbursts, irritability, frustration, and lack of patience. In terms of social impairment, the Veteran reflected that he became isolated and did not want to interact with people or trust others. He further endorsed symptoms of hypervigilance and chronic sleep impairment. He indicated that he remained active in his local church with his family, but stated, “I avoid folks like crazy, I don’t want to put my mood on them and I stay away.” He also noted that his psychiatric symptoms affected his marriage, indicating that he argued with his spouse and became very irritated over little things, which resulted in him leaving the house just to keep the peace. He further described issues of intimacy with his spouse as a result of his psychiatric problems. Although he noted that his relationship with his children was “alright,” he stated, “everybody walks on eggshells around me and they will tell you that I’m not the person to be around.” He also indicated that his relationship with his immediate family was not good and he did not see them at all. In terms of occupational impairment, it was noted that post-service the Veteran worked at the post office and indicated that he had problems getting along with coworkers and supervisors, so he preferred to work alone. He stated, “I’m a serious person and I don’t like anyone’s BS.” He added that his focus and concentration became problematic, which resulted in him being uninterested in tasks he needed to complete. He also noted problems with short-term memory and indicated that he was very bad at remembering names. On mental status examination, the mental health professional noted that the Veteran looked very depressed and his general behavior was described as blunted affect with psychomotor retardation. His mood was depressed and affect congruent with mood. The Veteran denied any delusions, hallucinations, and suicidal or homicidal ideation. Though, the Veteran stated that if not for his belief in God and knowing that he would go to hell if he killed himself, he probably would do it. The mental health professional diagnosed depressive disorder due to chronic pain and concluded that the Veteran had major impairment in several areas of functioning, to include impairment in work and house work. In November 2015, the Veteran underwent a VA examination for mental disorders, at which time, the examiner confirmed a diagnosis of major depressive disorder. In terms of social impairment, it was noted that the Veteran was married to his spouse for almost 40-years, but noted that the marriage was “down to nothing” due to his irritability, which caused his family to avoid him. He described his relationship with his two sons as “not the best, they say something is wrong with me.” He also noted that he avoided friends because he did not want “to put [his] mood on people” and wanted “to keep them as friends,” so he limited interaction with them. Due to his service-connected back disability he also did not do things that he enjoyed such as going shooting or riding his motorcycle. In terms of occupational impairment, it was noted that the Veteran worked at the USPS for 17-years, but had to leave due to his hip replacement surgery. On mental status examination, the examiner noted that the Veteran was casually dressed and had good hygiene and his speech was underproductive. His mood was depressed and irritable and his affect was stable and close to tears on occasion. He denied hallucinations or homicidal ideation, and although he denied suicidal ideation, it was noted that he endorsed passive thoughts without intent. The examiner identified psychiatric symptoms of depressed mood; chronic sleep impairment; disturbances of motivation and mood; and, irritability. The examiner concluded that the Veteran’s depression resulted in occupational and social impairment with reduced reliability and productivity. Private mental health treatment records dated in December 2015 noted that the Veteran reported staying in bed all day. He had a blunted affect with psychomotor retardation. His vocabulary was at high school level, but his speech was normal. His mood was depressed and his affect congruent with mood. He denied having hallucinations and delusions or homicidal and suicidal ideation. In his March 2016 notice of disagreement, the Veteran argued that more weight should be given to the statements made by his treating psychiatrist who provided mental health treatment in the previous nine-months than those made by the VA examiner. In this regard, his treating psychiatrist noted that his depression caused major impairment. Additional private treatment records dated in March 2016 noted that the Veteran was still on workers’ compensation for his back from the USPS and indicated that he did not do anything other than stay at home, since he physically could not do much. His mood was depressed and his affect congruent with mood. He denied suicidal or homicidal ideation as well as hallucinations or delusions, but reported problems with memory. In support of his claim, the Veteran submitted an October 2016 psychiatric assessment, where he reported feeling irritable, depressed, and suspicious of everyone. He also reported chronic sleep impairment. On mental status examination, it was noted that the Veteran was fully oriented and reported suicidal ideations, but no homicidal ideations. The mental health professional stated that the Veteran indicated that he did not enjoy life anymore and spoke of suicidal ideations. In terms of social impairment, it was noted that the Veteran reported little or no social life beyond his household. The mental health professional identified psychiatric symptoms of irritability; decreased energy; panic attacks that occurred often; nightmares/chronic sleep impairment; hypervigilance; emotional numbness; frequent and uncontrollable anger outbursts; and, lack of appetite at times. The mental health professional concluded that the Veteran had difficulty with many daily living/social skills, to include, but not limited to: flattened affect; depressed mood; anxiety; suspiciousness; panic attacks; chronic sleep impairment; disturbances of motivation and mood; and, difficulty in establishing and maintaining effective work and social relationships. Lastly, it was noted that the Veteran’s mental health was getting worse and was debilitating. VA mental health treatment records dated in December 2016 noted that the Veteran reported feeling down, depressed, or hopeless nearly every day. It was noted that he received the necessary treatment outside the VA for his suicidal ideation. In August 2018, the Veteran submitted a private mental health disability benefits questionnaire (DBQ) authored by his treating psychiatrist, who rendered a diagnosis of major depressive disorder, severe, and concluded that it resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In terms of social impairment, it was noted that he was married for 40-years, but reported that his marriage relationship was in decline with lack of intimacy. He noted that he stayed away from his spouse to keep the peace in the house. In terms of occupational impairment, it was noted that the Veteran was on workers’ compensation since 2015 due to his service-connected back disability, and continued to work part-time about four-hours a day, five-days a week, until the end of March 2018, where he left because he “[could not] take it anymore.” It was noted that he did not have any recent hospitalizations or suicide attempts, but he reported death wishes every week. The mental health professional identified psychiatric symptoms of depressed mood; anxiety; mild memory loss; flattened affect; disturbances of motivation and mood; difficulty in establishing and maintaining affective work and social relationships; inability to establish and maintain effective relationships; suicidal ideation; and, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The psychiatrist concluded that the Veteran reported wide-range of anxiety and depressive symptoms with Beck’s Depression/Anxiety Inventory scores that revealed severe depression and moderate anxiety. Lastly, although the Veteran noted that he would not act on his suicidal thoughts, he endorsed having death wishes at least In December 2018, the Veteran underwent an additional VA mental health examination, at which time the examiner rendered a diagnosis of major depressive disorder of moderate severity. In terms of social impairment, it was noted that the Veteran was married for 40-years and had two sons and three grandchildren. He noted that he could not participate in sexual activities with his spouse, ride his motorcycle, or play with his grandchildren due to his back disability. In terms of occupational impairment, it was noted that the Veteran worked as an automotive mechanic at the USPS until March 2018. Specifically, it was noted that until 2015 he worked full-time, then worked part-time, until he stopped working completely in March 2018. It was further noted that he did a little bit of light housework when he was able to and basically just played with his dog. The examiner noted that the Veteran received mental health treatment outside of the VA, and despite his prescribed medications, he continued to have significant depression as a result of his physical pain and inability to do many activities. He stated that he spent most of the day sitting in his recliner and also slept on it at night. He reported feeling irritable especially with other people. At the time of the examination, he denied suicidal thoughts or attempts. The examiner identified psychiatric symptoms of depressed mood; chronic sleep impairment; disturbances of motivation and mood; and, difficulty adapting to stressful circumstances, including work or a worklike setting. Additional psychiatric symptoms included lack of appetite, which the examiner noted was decreased to eating only once a day, decreased energy, and trouble concentrating. It was noted that during the examination the Veteran was appropriately dressed and groomed with depressed mood and restricted affect. His speech was normal and there was no evidence of psychosis. The examiner concluded that the Veteran’s depression resulted in occupational and social impairment with reduced reliability and productivity. After a careful review of all the evidence, lay and medical, resolving all doubt in the Veteran’s favor, the Board finds that his psychiatric symptoms, specifically continuous endorsement of suicidal ideation more nearly approximate the criteria for a 70 percent rating during the entire initial period on appeal. Although the Board notes that at times the Veteran denied suicidal ideation, more often than not, he admitted having suicidal thoughts, despite his indication that he would not act on them. Notably, suicidal ideation is one of the symptom examples that may result in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Nonetheless, during the period on appeal, the Veteran has not displayed total occupational and social impairment. He has continuously appeared oriented on examinations with normal speech. He has presented to examinations adequately dressed and groomed with good hygiene. Furthermore, although the Veteran tends to isolate himself, he is not totally socially impaired as required for a total rating, and more recently blamed his inability to interact on his physical disabilities, specifically his back. Moreover, while the August 2018 DBQ noted that the Veteran experienced intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, even the treating psychiatrist appeared to attribute this to his physical disabilities and not directly to his mental health. In short, the gross impairment of behavior resulting in severe disorientation of the individual which is contemplated by the 100 percent rating criteria, is simply not evident in this case at any time. In sum, the Board finds that the criteria for a 70 percent disability rating for the service-connected depression have been met. However, the criteria for a rating of 100 percent have not been met, and are not more nearly approximated than are the criteria for a rating of 70 percent. In light of these findings, the Board concludes that the increased rating sought on appeal is warranted to the extent of 70 percent. TDIU The Veterans Court has held that a request for TDIU is part and parcel of a higher rating when raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Here, in August 2018, during the pendency of the claim, the Veteran submitted a VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The Veteran asserts that he is precluded from obtaining or maintaining substantially gainful employment, specifically as a result of his service-connected low back pain and depression. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). 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, 22 Vet. App. at 452. Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran is service-connected for depression rated as 70 percent disabling, effective August 19, 2015 (based on the Board’s decision herein); lumbar strain rated as 40 percent disabling, effective September 25, 2008; right and left lower extremity radiculopathy, each rated as 20 percent disabling, effective January 22, 2018; hypertension rated as 10 percent disabling, effective October 1, 1995; dermatophytosis of the right palm rated as 10 percent disabling, effective November 30, 2007; and, headaches and erectile dysfunction rated as noncompensable. The Veteran had a combined rating of at least 80 percent in effect throughout the appeal period from August 19, 2015, forward, and is rated at 90 percent since January 22, 2018. Therefore, he meets the schedular criteria for a TDIU. The question remains, however, whether the Veteran has been precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities. During an August 2015 private psychiatric assessment, it was noted that the Veteran was unemployed and last worked in 2014 at the USPS as an automotive technician. The Veteran reported that he worked in this capacity for seventeen-years. During that time, the psychiatrist stated that based on a careful assessment of functioning, the Veteran had a major impairment in several areas of functioning, to include impairment in work. During a July 2016 VA examination for his service-connected back disability, the examiner indicated that it impacted his ability to work, which was described as “the functional impact of each condition is light duty,” lifting less than 15-pounds, requiring a cane at all times, and standing and walking must be limited to two-hours a day. Subsequent private mental health treatment records dated in October 2016 noted that the Veteran “barely” walked with a cane and took an insurmountable time to get to anywhere and/or do any task. During a February 2018 VA examination for his bilateral sciatic nerves (lower extremity radiculopathy), the examiner noted that the disability impacted his work as a mechanic due to his inability to lift heavy objects or do any extended walking or standing. He further noted that the Veteran missed between zero and one week off work in the previous 12-months. In a private August 2018 DBQ, the Veteran’s psychiatrist noted that in 2015, he went on workers’ compensation for his back, and was working part-time, four-hours a day, five-days a week, until March 31, 2018, at which time he left his job because he could not take it anymore. On his August 2018 application for TDIU, the Veteran stated that he worked for USPS as an automotive mechanic and indicated that his disabilities affected his full-time employment since March 20, 2014. He noted that his highest salary was $65,000 in 2013 and noted that in the previous year he earned $4,000. It was further noted that he had two-years of college education and no other work experience. During an October 2018 VA examination for his back, the examiner noted that the back disability impacted his ability to work due to difficulty with prolonged standing, ambulation, or sitting. In an October 2018 VA 21-4192 Request for Employment Information in Connection with Claim for Disability, the Veteran’s employer (USPS) noted that he worked there from December 1998 to March 2018 as an automotive technician; and, in the 12-month prior to his last day of work, he worked four-hours daily/twenty-hours weekly, and earned $15,000. In addition, it was noted that he lost 520-hours (65 days) in the previous 12-month due to his disability. The reason for termination was noted to be “retirement.” During his December 2018 VA mental health examination, the examiner noted that the Veteran stated that his back pain increased in severity over time, which he treated with medications and injections, but did not have a surgery. The examiner further noted that the Veteran was using a cane and a rollator walker when he was at home and scooter when he had to go long distances. After careful consideration of the record, to include both the lay and medical evidence, the Board resolves all reasonable doubt in the Veteran’s favor, finding that he is unemployable by reason of his service-connected disabilities, specifically due to his back and associated radiculopathy and depression. Accordingly, entitlement to a TDIU is granted. LLOYD CRAMP Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Yaffe, Associate Counsel