Citation Nr: 18160000 Decision Date: 12/21/18 Archive Date: 12/20/18 DOCKET NO. 14-28 255 DATE: December 21, 2018 ORDER Entitlement to a disability rating higher than 50 percent, for service-connected major depressive disorder (MDD) for the appeal period prior to May 16, 2012, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, for the appeal period prior to May 16, 2012, is granted. FINDINGS OF FACT 1. For the rating period on appeal prior to May 16, 2012, the Veteran's service-connected MDD caused occupational and social impairment with reduced reliability and productivity, but did not result in deficiencies in most areas. 2. For the rating period on appeal prior to May 16, 2012, the evidence is in equipoise as to whether the Veteran’s service-connected MDD precluded him from being able to secure and follow a substantially gainful occupation. 3. A 100 percent schedular rating for MDD, the sole service-connected disability, is already in effect from May 16, 2012. CONCLUSIONS OF LAW 1. For the rating period on appeal prior to May 16, 2012, the criteria for entitlement to a disability rating higher than 50 percent for service-connected MDD are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code (DC) 9434 (2017). 2. For the rating period on appeal prior to May 16, 2012, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1967 to January 1969. This matter comes to the Board of Veterans’ Appeals (Board) from rating decisions of the Department of Veterans’ Affairs (VA) Regional Office (RO). By way of procedural history, the Board, in an April 2012 decision, granted service connection for MDD. In June 2012, the RO implemented the award of service connection for MDD, assigning an initial 50 percent rating, effective July 20, 2007, and a 100 percent rating for MDD, effective May 16, 2012. The Veteran then filed a Notice of Disagreement with rating decision in which he disagreed with the assigned ratings. Although the RO characterized the issue on appeal here as entitlement to an “earlier effective date” for the 100 percent disability rating for MDD, that issue is in fact, part of the appeal for a higher disability rating. More specifically, the Veteran filed an increased rating claim for his service-connected MDD. Although the subsequent Statement of the Case also purported to deny an “earlier effective date” prior to May 16, 2012, for the 100 percent disability rating assigned for the MDD, this is not an effective date claim. Rather, the Veteran had already appealed the question of entitlement to a higher rating, and the RO’s actions (while that appeal was pending) resulted in a staged rating for the condition on appeal. Where the rating for a service-connected condition has been staged, the Board’s review includes consideration not only of whether those ratings should be increased, but also whether the date assigned for the staged rating was in accordance with the evidence. In this Board decision, all the questions that would pertain to an earlier effective date issue (when entitlement to a certain disability rating arose) shall be addressed in adjudicating the appeal for a higher rating. The Board finds that the Veteran is clearly appealing a rating higher than 50 percent prior to May 16, 2012, and the denial of entitlement to a TDIU. In November 2016, the Board remanded this matter for the issuance of a Statement of the Case. The RO then issued a SOC in August 2018 that addressed the proper issue on appeal with regard to the MDD. Increased Ratings – Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C. §§ 1155, 5107. Evaluation of a service-connected disorder requires a review of the Veteran’s entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. See 38 C.F.R. § 4.3. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). If there is a question as to which rating to apply to a veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must analyze the credibility and probative value of the evidence, account for the evidence that it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the Veteran. Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula (Rating Formula) for Mental Disorders. See 38 C.F.R. § 4.130. Under DC 9434, a 50 percent rating is warranted if it is productive of 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. Accordingly, a 70 percent rating is warranted if the evidence establishes that 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. Whereas, 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. Increased Rating - Analysis The Veteran’s service-connected MDD is rated as 50 percent disabling from July 20, 2007, through May 15, 2012, and a 100 percent disabling, thereafter. He now seeks a rating higher than 50 percent prior to May 16, 2012. Specifically, the Veteran asserted that the symptoms of his MDD warrant a 100 percent disability rating for period on appeal. At an August 2007 VA Medical Center (VAMC) appointment, the Veteran reported feeling depressed, unmotivated, fearing for his life and as if he could not get it together. The examiner concluded that the Veteran had a “waxing and waning course of depression related to current stressors but was stable overall.” The examiner further concluded that the Veteran was now taking medication and was satisfied with his current treatment. The Veteran’s treatment records reflect that in October 2007, his doctor noted that he was doing well overall besides a periodic low mood based on stress at home. The doctor further noted that he was stable with no need for a medication change. In November 2007, the doctor noted that the Veteran experienced high anxiety before and after his melanoma removal two weeks prior, but reported low anxiety during the visit. The Veteran’s judgment and insight were recorded as “fair.” From January 2008 to March 2008, the Veteran’s treatment records noted that the he reported no change to his depression and anxiety, and stated that they were “under normal control.” It further noted that Veteran was being bothered by things at home but was otherwise stable with normal mood. Speech rate and prosody noted were considered normal by the examiner, while his mood was noted as “good” and “alright”. Additionally, the Veteran denied having had suicidal or homicidal ideations prior to or during the visit. The Veteran’s VA staff psychiatrist wrote a May 2008 letter to VA in support of the Veteran’s claim. The doctor noted the Veteran’s complaints of psychiatric symptoms upon his separation from service. He felt unmotivated, depressed and did “nothing” for two years after which he kept himself busy working. But after 12 years, his symptoms returned. He then sought treatment at VA and began taking medications. The doctor related the Veteran’s MDD to service and indicated that the Veteran’s disability would require ongoing treatment to manage its symptoms. During the Veteran’s follow-up appointments at the VAMC, from July 2008 to September 2008, the Veteran reported no changes since his last visit. He also reported that he had been managing his stress well and was on his stable on current regimen. The Veteran’s judgment and insight was noted as fair. At his November 2008 appointment, the Veteran reported having “depressive thoughts” and feeling stressful at times but overall had no change. Speech rate and rhythm were noted as normal while his mood was noted as “good” with logical thoughts, no hallucinations or suicidal ideations. In February 2009, the doctor noted that he was maintaining boundaries and was not depressed despite dealing with significant hardships. His speech rate and prosody were again noted as normal. His mood was noted as “ok”. The Veteran also denied suicidal or homicidal ideations. The Veteran’s judgment and insight were noted as fair. In September 2009, the Veteran called and canceled his appointment prior to his visit, because he had no urgent issues to report. In August 2010, the Veteran underwent a VA examination during which his MDD diagnosis was described as “mild to moderate” in severity with chronic recurrent symptoms. The Veteran reported that his disability did not interfere with his normal daily activities. He stated that he maintained his hobbies, such as fishing and hunting and had a good relationship with his wife and daughter. The report further noted that the Veteran had some suicidal ideation in the past, but he denied having any during the examination. The examiner provided, that there was no impairment or interference with employment because the Veteran was unemployed at the time of the examination. However, the examiner explained that when he was employed his depression did significantly interfere with his functioning as an employee. Notably, the Veteran reported that he had experienced a difficulty concentrating, was socially withdrawn, irritable and had sleep problems which impacted his ability to function at his optimal level. From June 2011 to October 2011, the Veteran was noted as being well overall with continued but controlled anxiety and dysthymia. The doctor noted that the Veteran was “coping adequately.” His speech rate and prosody were noted as normal. His mood noted as “ok”. The Veteran also denied current suicidal or homicidal ideations. According to a July 2011 VA opinion, the examiner indicated that the Veteran’s MDD was chronic, recurrent and mild-to-moderate in severity. In January 2012, the Veteran reported to the VAMC for a follow-up where he admitted to having periods of fleeting suicidal ideation prior to the visit. He further reported that he was not having them currently and that nothing ever develops to the planning stage. The examiner noted that the Veteran was during the examination and doing well after the recent birth of his first grandchild. In February 2012, the Veteran reported that he had been experiencing a continued low mood, although he was adequately coping with his stressors. He also reported that he was sleeping well and that his anxiety was controlled with medication. He denied thoughts of suicidal ideation, exhibited normal speech and fair judgement. In June 2012, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by his VA treating psychiatrist who continued a diagnosis of MDD and determined that the disability resulted in total social and occupational impairment. His symptoms included a depressed mood, anxiety, panic attacks more than once a week, near-continuous panic and depression affecting his ability to function independently, chronic sleep impairment, mild memory loss, disturbance of motivation and mood, difficulty and the inability in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, suicidal ideations, and intermittent inability to perform activities of daily living. Additional symptoms included impaired concentration, loss of interest, anhedonia increased feeling of guilt and psychomotor agitation. It was also noted that the Veteran had not worked since 1998. As reflected above, the Veteran’s symptoms began to worsen and those symptoms warranted a 100 percent schedular rating from May 16, 2012. In February 2013, the Veteran, through his representative submitted a lay statement in support of his claim for an increase. Here, the Veteran asserted that the treatment records extensively document his struggles and need for numerous medications to minimally function. He also asserted that this proved that his condition approximated more nearly to the symptoms contemplated under the 100 percent disabling rating as there is no evidence that his unmediated symptoms have ever improved since 1997. The Veteran also challenged the adequacy and ultimately the probative value of the August 2010 VA examiner’s opinion; specifically, the examiner’s statement that the Veteran’s symptoms “were not significantly interfering with his employment functioning because he was not currently employed during the time of the examination.” See February 2013 Notice of disagreement and attached statement. When evaluating a mental disorder, the rating must be based on all the evidence of record that bears on the 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. The Board acknowledges that Veteran’s assertions that the probative value of the opinion is diminished based on the examiner’s assessment of functional impairment at the moment of the examination. However, the examiner’s opinion does not end there and instead continued with an assessment of the other evidence of record, which bears on the overall occupation and social impairment experienced as a result of MDD. Notably, the examiner opined that, although there was no current interference due to unemployment, the Veteran’s depression did significantly interfere with his functioning as an employee, when he was employed. The examiner explained that during that time, the Veteran reported symptoms such as a difficulty concentrating, being socially withdrawn, having a depressed mood, irritability and sleep problems that impacted his ability to be employed and function at his optimal level. The examiner also lists a summation of the Veteran’s employment history found in the evidence of record. The Board finds that the VA medical opinion is adequate to decide the claim. The Board also finds that this opinion and the Veteran’s treatment records from 2007 to 2012, noted above, are credible and probative evidence related to the progression and severity of the Veteran’s service-connected MDD. This evidence is probative because it provides a detailed explanation of the Veteran’s medical history and symptoms. The medical evidence also demonstrates that the Veteran’s lay statements reported to examiners were considered prior to them rendering the medical opinions noted above. Here, the Veteran’s medical treatment records demonstrate that the assignment of a 50 percent disability rating, from July 20, 2007 to May 15, 2012, is proper. A 70 percent disability rating is not warranted for the period above because the weight of the evidence does not demonstrate 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. Specifically, in the area of mood and thinking, the record notes that the Veteran’s symptoms remained stable overall with some depressive thoughts and high anxiety, but without more severe symptoms such as unprovoked irritability with periods of violence or spatial disorientation. Although, the examiner noted a waxing and waning course of depression in August 2007, the Veteran was treated with medication and considered stable overall. From January 2008, February 2009 and September 2009, the record of the Veteran’s examinations indicate that his mood was “ok,” as he denied feeling depressed despite significant hardships. In regard to the effect on the Veteran’s judgement and speech, treatment records show that they were consistently considered fair and normal. As it relates to maintaining relationships, the evidence included statements from the Veteran to the examiner that he had a great relationship with his wife and daughter and was maintaining boundaries despite stress at home. See February 2009 VA treatment records. Although the Veteran was not employed during this period, he reported that he still enjoyed hobbies such as fishing and hunting. He also reported to the examiner that his disability does not interfere with his normal daily activities. The Board acknowledges that when he was employed, the Veteran experienced deficiencies in this area. However, similar deficiencies have not occurred in most areas. Therefore, upon review of all the evidence of record, both lay and medical, the Board finds that, prior to May 16, 2012, the Veteran’s MDD does not meet or more nearly approximate the criteria for a 70 percent or 100 percent disability rating. In reaching this conclusion regarding the degree of occupational and social impairment, the Board considered all the Veteran’s psychiatric symptoms and impairment, if the symptom is specifically listed in the rating criteria, considering such symptoms as “like or similar to” the symptoms in the rating criteria. See Mauerhan, 16 Vet. App. At 442 (stating 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, and that, without those examples, differentiating between rating evaluations would be extremely ambiguous); Vazquez-Claudio, 713 F.3d at 116-17 (the rating criteria under § 4.130 is “symptom-driven” and “a veteran may only qualify for a given disability rating under [this criteria] by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration”). With this in mind, the evidence shows that the Veteran’s overall MDD picture is already adequately contemplated by the 50 percent rating during the applicable period under consideration. The Veteran does experience reduced reliability and productivity due to such symptoms as disturbances of motivation and mood, depression and difficulty in understanding complex commands, but these symptoms are specifically contemplated in the 50 percent rating criteria. For these reasons, the Board finds that a rating higher than 50 percent, for the rating period prior to May 16, 2012, for MDD is not warranted. TDIU – Applicable Laws and Regulations Potential entitlement to a total disability rating based on individual unemployability (TDIU) is an element of all increased rating requests. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). A total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result a of service-connected disability, provided that he/she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If not, all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service (Director), for extraschedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. Although entitlement to an extraschedular TDIU under 4.16(b) is determined in the first instance by the Director, the RO and the Board are tasked with making the threshold determination that referral to the Director for extraschedular consideration is appropriate. That threshold determination must be supported with “a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.” 38 C.F.R. § 4.16(b). The Board recognizes that the United States Court of Appeals for Veteran’s Claims (Court) has held that the receipt of a 100 percent schedular rating for a service-connected disability does not necessarily render moot any pending claim for a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court’s decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis for an award of special monthly compensation. The Bradley case, however, is distinguishable from the instant case. In Bradley, the Court found that TDIU was warranted in addition to a schedular 100 percent evaluation where the TDIU had been granted for a disability other than the disability for which a 100 percent rating was in effect. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley, 22 Vet. App. at 293. TDIU - Analysis Here, the Veteran asserts that he has been unable to secure and follow a substantially gainful occupation due to his service-connected MDD. A TDIU, if granted, would be based on the Veteran’s service-connected MDD alone, for which he is receiving a 100 percent schedular disability rating, effective May 16, 2012. He has no other service-connected disabilities. Thus, a TDIU could not assist the Veteran in meeting the criteria for SMC under 38 U.S.C. § 1114(s) and the issue of entitlement to a TDIU is moot from May 16, 2012. In addition, the claim for TDIU benefits is moot for that period because an award of a total schedular rating is the greater benefit. Green, supra. On the contrary, the Veteran’s MDD is service-connected at a 50 percent disabling rate prior to May 16, 2012 and therefore, the Board will consider the claim for TDIU for the rating period on appeal prior to May 16, 2012. In July 2014, the RO referred the issue of entitlement to a TDIU from July 20, 2007 to May 15, 2012, to the Director for extraschedular consideration. The resulting opinion was unfavorable to the claim. See July 2014 VA Memo from the Director of Compensation Service. However, the Board is not bound by that finding. Wages v. McDonald, 27 Vet. App. 233 (2015). In adjudicating the issue of an assignment of a TDIU on an extraschedular basis, the Board must address whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Following his separation from service, the Veteran was working and attending school to be become a welder. The record reflects that the Veteran’s educational and occupational background led him to work as a crane operator, also called a heavy machinery operator. See Social Security Administration Records. The Veteran worked for a crane operator for about 3 years. This position included task such as hoisting beam pipes scrap and lifting propellers from ships. The record further reflects that the Veteran stopped working due to his disability in 1998. Following his last job, the Veteran saw a physician who reported that in his medical opinion, the Veteran was unable to do his job, which required him to work as a heavy equipment operator. The physician opined that the Veteran was “totally disabled from this occupation.” See 1997 Physician Statement. In his social security records, the Veteran reports being terminated for “inattentiveness” and daydreaming at work. The Veteran’s long-time physician described him as having “odd behavior, rapid speech and focus” in 2000. The physician further noted that based on this, employment for the Veteran was impossible without endangering himself or someone else. See June 2000 Letter from Physician. The following year, the same physician noted that the Veteran was not at all capable of meeting the demands of a job because he “tends to move chaotically from task to task and cannot focus on any particular task long enough to complete it.” In August 2007, the Veteran reported to the Social Security Administration (SSA) that he was unable to work because of depression and anxiety. In August 2010, during a VA examination the Veteran recalled that after being laid off his job as a heavy construction worker, he attempted to seek employment again. Once re-hired, he reported that he began to experience symptoms of depression again and could not concentrate or function at work. As noted above, the Veteran also reported that his depression significantly interfered with his functioning as an employee. When he did work, he was socially withdrawn, irritable and experienced sleep problems that impacted his ability to be employed and function at his optimal level. In the 2012 DBQ, the Veteran’s treating psychiatrist reiterated that the Veteran had not worked since 1998 and opined that due to his MDD he was not employable. (Continued on the next page)   Here, the Board finds that the record contains competent and credible evidence suggesting that the Veteran’s MDD precluded him from securing and maintaining substantially gainful employment from July 20, 2007 through May 15, 2012. Based on the foregoing, resolving any doubt in the Veteran’s favor, the evidence is at least in equipoise to support the grant of entitlement to TDIU on an extraschedular basis. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Wagner, Counsel