Citation Nr: 20001167 Decision Date: 01/07/20 Archive Date: 01/07/20 DOCKET NO. 13-23 557 DATE: January 7, 2020 ORDER Entitlement to an initial rating in excess of 30 percent for service-connected major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. FINDINGS OF FACT 1. The Veteran’s service-connected major depressive disorder has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal. 2. The Veteran’s service-connected disabilities do not prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for service-connected major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.102, 4.130, Diagnostic Code 9435. 2. The criteria for entitlement to a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from September 1964 to September 1968. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Service and Campaign Medals. This appeal comes to the Board of Veterans’ Appeals (Board) from September 2011 and June 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In May 2018, the Board remanded the issues on appeal for further development. 1. Entitlement to an initial rating in excess of 30 percent for service-connected major depressive disorder. Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). When there is a question as to which of two evaluations shall be applied, the higher evaluation 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. Where (as here) the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999). Currently, the Veteran’s service-connected major depressive disorder (previously rated as depression and anxiety) is rated at 30 percent from June 24, 2010, under 38 C.F.R. § 4.130, Diagnostic Code 9435. Under this Diagnostic Code, a 30 percent is warranted where the psychiatric condition produces occupational and social impairment with occasional decrease in wok efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130, Diagnostic Code 9435. A 50 percent rating is warranted where the psychiatric condition produces 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 where the psychiatric condition produces 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. Id. A 100 percent rating is warranted where the psychiatric condition results in 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. Id. Evaluation under § 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). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443; see also Vazquez-Claudio, 713 F.3d at 117. Id. In a May 2011 VA treatment record, the Veteran admitted to having intermittent thoughts of suicide, but denied acting upon it. In a June 2011 VA psychology note, the Veteran reported that his primary mental health concern was his “depression.” He reported that nothing excited him and he described himself as cynical. The Veteran believed that there was a direct correlation between how buy he was and his mood. When he was not busy, he tended to overthink things. Despite this, he was still able to enjoy sports, traveling, and going to volunteer. He denied symptoms of manic episodes. He had a longstanding history of irritability. He broke both hands in altercations and most recently was involved in a physical altercation 1.5 years ago. Verbal altercations were infrequent, although he reacted strongly when they occurred. He was encouraged by his friends to seek therapy to control his temper. In June 2011, the Veteran was afforded a VA examination for his mental disorder. The Veteran was diagnosed with depressive disorder not otherwise specified and anxiety disorder not otherwise specified (in partial remission). The Veteran complained of fatigue, inability to sleep, loss of appetite (maintaining weight), and mood swings. Upon mental status examination, the Veteran appeared to be clean, well-groomed, and casually dressed. The Veteran was oriented to person, place, and time. His memory appeared to be within normal limits. The examiner noted that there were no obvious signs of anxiety or dysphoria. The Veteran denied suicidal/homicidal ideation and hallucinations/delusions. He reported that he completed high school, and he was 30 hours short of a college degree. He used to work in logistics. He drove a truck for a supermarket chain company for 14 years, and he drove a truck for 17 years with the job before. The Veteran got into fights, and it strained his employment. The Veteran was now retired. He volunteered with 2 to 3 organizations and stayed busy. He socialized with his wife’s friends and a regular social group. He made friends easily. The Veteran also volunteered at a Vet home. He loved sports, like softball, bowling, and golf. If the Veteran did not have something to do, then he would get bored. The Veteran did a lot around the house. He did yard work, painted, cleaning, and split the cooking with his wife. The VA examiner concluded that the Veteran appeared to have some periods of diffuse symptoms of agitation, anxiety, self-blame, and guilt which appeared related to his military experiences. These symptoms appeared to complicate the Veteran’s work life (fights with others), but his symptoms were less of a problem at present. In September 2016, the Veteran underwent a VA examination for his psychiatric disorder. He was diagnosed with moderate, recurrent major depressive disorder. The Veteran’s symptoms included depressed mood and chronic sleep impairment. The VA examiner concluded that the Veteran’s major depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he remained married to his wife. He said his relationship with his wife was very good. He stated that his wife was “a saint.” He had four grandchildren, and his relationship with his children and grandchildren was “really, really good.” He spent time with his children and grandchildren about once per week. The Veteran stated that he spent less time with his friends because some of them passed away or moved away. He spent time with his wife’s friends and enjoyed bowling with friends every Monday. The Veteran stated that he also enjoyed reading fiction books; he spent an hour or more reading every day. His day consisted of him waking up at 7am, playing trivia, reading, running errands, volunteering, doing household chores, and watching television. The Veteran reported that he continued to volunteer. He was able to volunteer at several organizations, until he received a heart valve replacement approximately 1.5 years ago. Following his heart valve replacement, the Veteran had to decrease his productivity. He currently volunteered 20 hours per week helping with the organization’s fundraisers. The Veteran had not been employed since 2011. The Veteran also engaged in individual and group psychotherapy, as well as occupational therapy groups. He had been prescribed Sertraline, which helped his mood. He also felt that the individual and group treatment were helpful for improving his depression years ago. The Veteran noted that he felt another depressive episode began just prior to his heart valve replacement approximately 1.5 years ago. He experienced low mood most days. The Veteran endorsed feeling low motivation to engage in most activities that he found previously enjoyable. His energy level was mediocre, and he showered less often (previously showered daily, now he showered once every two or three days). He experienced sleep disturbance. Also, the Veteran had a diminished ability to concentrate. The Veteran stated that others commented on his difficulty concentrating, and his tendency to stare off at nothing. He denied experiencing weight change, psychomotor agitation, feelings of worthlessness/guilt, as well as recurrent thoughts of death. The Veteran denied experiencing suicidal and homicidal ideation, plan, and intent. He had protective factors, such as his relationship with his family. He did not appear to be at imminent risk of harming himself or others. The Veteran was afforded another VA examination in August 2017 for his psychiatric disorder. The Veteran was diagnosed with moderate, recurrent major depressive disorder. The Veteran’s symptoms included depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence. The VA examiner concluded that the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that he married his wife in 1973 and was still married. They had two children. The Veteran reported that he retired in 2010 from working at a distribution company. However, the Veteran volunteered on Tuesdays, Thursdays, and Fridays. He bowled on Mondays and played trivia on Wednesdays. The Veteran reported that he and his wife went out to eat and did a lot with the grandchildren on the weekends. When the Veteran found out that his VA examination appointment was the next day, the Veteran did not get any sleep that night. The Veteran was trying to manage his temper. He had gotten in 5 fights as a “teamster,” but was not fired. The Veteran appeared calm and collected, but internally he was “a mess.” Upon behavioral observation, the VA examiner noted that the Veteran appeared neat and clean. The Veteran was very cordial, jovial, and polite. There were no thought disorders. After considering the evidence of record and the laws and regulations as set forth above, the Board finds that an initial rating in excess of 30 percent is not warranted for the Veteran’s service-connected major depressive disorder. Throughout the appeal period, the Veteran’s major depressive disorder has been characterized primarily by symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and impaired impulse control, such as unprovoked irritability with periods of violence. Although the Veteran had problems at times managing his temper, he was able to maintain his friendships and maintain a good relationship with his wife, children, and grandchildren. Although the Veteran experienced periods of depression where he had low motivation, diminished concentration ability, and decreased energy level, he was still able to volunteer several days a week, bowl, and engage in other social activities. The Veteran also found time to read and watch television. The Veteran did yard work and chores around the house. He reported that he went out to eat with his wife and did a lot with his grandchildren. Even though the Veteran admitted that he showered less often than normal on his September 2016 VA examination, he still appeared neat and well-groomed. In the past, the Veteran admitted to contemplating suicide, but it was not of a frequent nature, and he denied acting upon it. Further, on his September 2016 VA examination, the Veteran denied suicidal and homicidal ideation. Furthermore, on the September 2016 VA examination and the August 2017 VA examination, both examiners concluded that the Veteran’s major depressive disorder was manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. Overall, the Board finds the severity, frequency, and duration of the Veteran’s symptoms more closely approximate the symptoms contemplated by a 30 percent rating. The Board has also considered the statements of the Veteran regarding the severity of his service-connected major depressive disorder and acknowledges that he is competent to report the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a) (2012); 38 C.F.R. § 3.159(a)(2) (2018); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). Ultimately, however, the opinions and observations of the Veteran, when considered in the full context of his treatment records and VA examination reports, do not meet or approximate the criteria for a higher rating under 38 C.F.R. § 4.130. The Board has considered whether staged ratings are appropriate. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (holding that at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged ratings”). The Board finds that the Veteran’s major depressive disorder symptoms have been consistent with the 30 percent rating currently assigned for the entire relevant time period here on appeal. The Veteran’s symptoms have been consistent in frequency and severity throughout the appeal period, and the record does not indicate any significant increase or decrease in such symptoms during the appeal period. Accordingly, staged ratings are not warranted and the 30 percent rating that is now assigned for the entire period here on appeal is appropriate. In short, although the Veteran’s service-connected major depressive disorder is productive of occupational and social impairment consistent with a 30 percent rating, the criteria for a higher rating have not been met or approximated. 2. Entitlement to a TDIU. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion, 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). “Substantially gainful employment” is that employment “which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. For the purposes of finding one 60 percent disability or one 40 percent disability in combination, disabilities resulting from a common etiology, affecting one or both lower extremities or affecting a single body system will be considered as one disability. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). The Veteran is currently service-connected as follows: (1) aortic (heart) valve replacement at 100 percent from March 31, 2015, and 60 percent from October 1, 2015 to November 1, 2015; (2) coronary artery disease at 30 percent from June 24, 2010, 60 percent from September 26, 2013 to March 31, 2015, and 60 percent from November 1, 2015; (3) major depressive disorder at 30 percent from June 24, 2010; (4) type II diabetes mellitus at 20 percent from April 18, 2014; (5) tinnitus at 10 percent from October 5, 2010; (6) right upper extremity peripheral neuropathy associated with type II diabetes mellitus at 10 percent from November 16, 2015; (7) left upper extremity peripheral neuropathy associated with type II diabetes mellitus at 10 percent from November 16, 2015; (8) right lower extremity peripheral neuropathy associated with type II diabetes mellitus at 10 percent from November 16, 2015; (9) left lower extremity peripheral neuropathy associated with type II diabetes mellitus at 10 percent from November 16, 2015; and (10) bilateral hearing loss at 0 percent from June 24, 2010. The Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) for the appeal period from September 26, 2013; however, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) prior to September 26, 2013. Therefore, the Board must determine whether to refer the claim for TDIU for the appeal period prior to September 26, 2013, to the Director of Compensation Service under 38 C.F.R. § 4.16(b). For all periods on appeal, the Board must determine whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Following a review of the evidence, the Board finds that it has not been shown that the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation. In July 2014, the Veteran submitted a VA Form 21-8940 requesting entitlement to a TDIU. Specifically, the Veteran asserted that his service-connected coronary artery disease prevented him from securing or following any substantially gainful occupation. The Veteran noted that he last worked full-time in 2010 and became too disabled to work on September 26, 2013. He last worked for a distribution company as a forklift driver. The Veteran also reported that he completed high school and two years of college. In April 2015, the Veteran’s former employer, a distribution company, submitted a VA Form 21-4192, Request for Employment Information. The Veteran’s former employer reported that the Veteran retired on February 26, 2010. The Veteran’s duties included operating a forklift. In a May 2011 VA treatment record, it was reported that the Veteran enjoyed sports, traveling, and volunteering. On the Veteran’s July 2014 VA examination for his heart disorder, the VA examiner concluded that the Veteran’s heart disorder did not impact his ability to work. In a May 2017 VA cardiology progress note, the Veteran reported that he was active and able to work around the house. He mowed the lawn without any chest pain. He denied dyspnea on exertion. The Veteran also denied palpitation, dizziness, and syncope. The Veteran was taking his medications, eating healthy, and staying active around the house. Further on his August 2017 VA examination for mental disorders, the Veteran reported that he volunteered three days a week, bowled on Mondays, and played trivia on Wednesdays. He also revealed that he and his wife went out to eat and did a lot with the grandchildren. Despite the Veteran’s service-connected disabilities, the Veteran appears to maintain a very active lifestyle. The Veteran retired in 2010 after more than three decades of full-time employment. Since that date, the Veteran has continued to volunteer at rates approaching full-time employment. The medical evidence of record shows that, considered individually and together, though the Veteran’s service-connected disabilities would impact his ability to secure or maintain a substantially gainful occupation, such an occupation would not be precluded. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment). The Board has also considered the positive lay statements by the Veteran regarding entitlement to a TDIU. However, here, the specific examination findings of trained health care professionals and documented medical treatment records are of greater probative weight than the more general assertions of the Veteran. Accordingly, the Veteran is not unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board declines to remand the claim for referral to the Director of Compensation Service for extraschedular consideration for the appeal period prior to September 26, 2013. For all periods on appeal, entitlement to a TDIU is denied. Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Crawford, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.