Citation Nr: 20004756 Decision Date: 01/21/20 Archive Date: 01/21/20 DOCKET NO. 19-21 799 DATE: January 21, 2020 ORDER Entitlement to an initial disability rating of 70 percent, and no higher, for depressive disorder is granted. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s service-connected depressive disorder is manifested by near-continuous panic of depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, inability to establish and maintain effective relationships, and suicidal ideations, and at worst, demonstrates occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. CONCLUSION OF LAW The criteria for an initial disability rating of 70 percent, and no higher, for the service-connected depressive disorder have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.130, Diagnostic Code 9434 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1980 to May 2000. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a March 2017 rating decision of the Department of Veterans Affairs (VA) Nashville, TN Regional Office (RO). Entitlement to an initial disability rating in excess of 50 percent for depressive disorder The Veteran was granted service connection for persistent depressive disorder (dysthymia) with anxious distress in March 2017, rated at 50 percent disabling effective February 2016. The Veteran contends that he is entitled to an initial disability rating in excess of 50 percent. See October 2017 notice of disagreement. The Veteran’s depressive disorder is rated under 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434. The current regulations establish a general rating formula for mental disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 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. See Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed.Cir.2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because “[a]ll nonzero disability levels [in § 4.130] 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 under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio, 713 F.3d at 116-17. For example, “in the context of a 70[%] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas.” Id. at 117. Thus, assessing whether a 70 percent evaluation is warranted requires a two-part analysis: “The... regulation contemplates[: (1)] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2)] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas.” Id. at 118. Pursuant to Diagnostic Code 9434, depression is rated as 50 percent disabling 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; and difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9434. A 70 percent evaluation is warranted where there is objective evidence demonstrating occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to 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, or 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 the inability to establish and maintain effective relationships. Id. A maximum 100 percent evaluation is for application when there is 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; and memory loss for names of close relatives, own occupation, or own name. Id. The Veteran was afforded a VA examination in October 2017 to determine the etiology and manifestations of his depressive disorder. The VA examiner noted a diagnosis of persistent depressive disorder, with mild anxious distress. The Veteran reported daily depression resulting in persistent isolation, rarely speaking to his wife, not socially engaging, and having no desire to leave home. The Veteran endorsed symptoms of depressed mood, anxiety, near-continuous panic of depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, suicidal ideations, and intermittent inability to perform activities of daily living. The VA examiner noted that the Veteran’s depression resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Following a review of the evidence and affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s depressive disorder symptoms warrants a 70 percent rating. For a 70 percent disability rating, there is evidence of the following: suicidal ideation; near-continuous panic or depression; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances, including work or a work-like setting; and the inability to establish and maintain effective relationships. The October 2017 VA examiner noted occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. That stated, the Board finds that the preponderance of the evidence is against a finding that his depressive disorder resulted in total occupational and social impairment to warrant a 100 percent disability rating. In this regard, there is no evidence in the record showing that the Veteran’s depression was manifested by such symptoms such 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; and memory loss for names of close relatives, own occupation, or own name. Under these circumstances, the Board finds that the Veteran is not shown to have experienced symptoms of the type, extent, and frequency or severity to result in occupational and social impairment as contemplated by the rating criteria for a 100 percent rating. After resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s depressive disorder symptoms more nearly approximate the criteria under Diagnostic Code 9434 for a rating of 70 percent, but no higher. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130. REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. With regards to a claim for a TDIU, the Veteran has asserted that his persistent depressive disorder, discussed above, precludes him from obtaining and maintaining substantial gainful employment. See October 2017 VA examination. Specifically, the Veteran has reported that his depression results in a lack of desire to leave his house and socialize and/or work. Id. Thus, the record raises the issue of entitlement to TDIU. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009) (a TDIU claim is part of an increased rating claim when such claim is raised by the record). It does not appear that the Veteran has been afforded written notice of the information necessary to substantiate a TDIU claim or the appropriate claim form. In order for the Veteran’s TDIU to be fully and fairly adjudicated it is necessary that he have the opportunity to provide the information necessary to substantiate the claim. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate notice accompanied by the claims forms necessary to file and complete a TDIU claim. 2. After completing the above, and any other development as many be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran’s claims should be re-adjudicated based on the entirety of the evidence. If any benefit sought remains denied, furnish the Veteran and his representative a supplemental statement of the case (SSOC) and return the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.C. Slaughter, 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.