Citation Nr: 20008264 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 15-06 980 DATE: January 31, 2020 ORDER Entitlement to an initial rating greater than 50 percent for major depressive disorder with secondary generalized anxiety disorder (MDD) prior to March 11, 2019 is denied. Entitlement to an increased rating greater than 70 percent for MDD from March 11, 2019 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to March 11, 2019, the Veteran’s MDD was manifested by symptoms resulting in occupational and social impairment with reduced reliability and productivity. His MDD was not manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas. 2. From March 11, 2019, the Veteran’s MDD was manifested by symptoms resulting in occupational and social impairment, with deficiencies in most areas such as work, school, family relations, judgment, thinking, or mood. The Veteran’s MDD was not manifested by symptoms resulting in total occupational and social impairment. 3. The competent and probative evidence of record does not demonstrate that the Veteran was unable to obtain or maintain employment solely due to his service-connected disabilities. CONCLUSIONS OF LAW 1. Prior to March 11, 2019, the criteria for an initial disability rating greater than 50 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2018). 2. From March 11, 2019, the criteria for a disability rating greater than 70 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434 (2018). 3. The criteria for entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1971 to August 1973, January 1976 to January 1982, and August 1985 to September 1992. He appealed a January 2013 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying an initial rating greater than 30 percent for his service-connected MDD. In June 2018, the Board of Veterans’ Appeals (Board) remanded the Veteran’s claim for a VA examination. As a result of the VA examiner’s findings and review of the record, the AOJ increased the Veteran’s disability rating to 50 percent prior to March 11, 2019 and 70 percent thereafter; the AOJ also denied entitlement to TDIU. See March 2019 and August 2019 rating decisions. The claim is now back before the Board and there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Ratings When, as here, a Veteran seeks an increased evaluation, it is presumed the maximum benefit allowed by law and regulation is sought and such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. When considering the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where 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 for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Here, the Veteran contends that his MDD is more severe than his 50 percent disability rating prior to March 11, 2019, and 70 percent thereafter, would indicate under 38 C.F.R. § 4.130, Diagnostic Code 9434. According to 38 C.F.R. § 4.130, Diagnostic Code 9434, 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, and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted for 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 for 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 name. Id. Although the Veteran’s symptomatology is the primary consideration, the Veteran’s level of impairment must be in “most areas” applicable to the relevant percentage rating criteria. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-19 (2013). Prior to March 11, 2019 The Veteran was afforded a VA examination in July 2012 to assess the nature and severity of his MDD. He contends the July 2012 VA examination results were inadequate, because the Veteran did not understand some of the questions and the VA examiner gave “curt replies.” See June 2013 notice of disagreement (NOD). However, the Board notes that it is required to evaluate all the evidence of record that bears on occupational and social impairment, rather than solely on the VA examiner’s assessment at the moment of the examination. See 38 C.F.R. § 4.126(a). The record reflects the Veteran suffered from depression, high anxiety, irritability, and obsessive thinking. See November 2011 VA treatment records. He also reported sleep impairment and had difficulty “being around large crowds.” See November 2011, September 2013, February 2015 VA treatment records. Although the Veteran’s symptoms produced reduced reliability and productivity to his social and occupational impairment, his MDD did not rise to the level of social and occupational impairment in most areas, the criteria for the next highest rating, as analyzed below. At the July 2012 VA examination, the Veteran stated he had social relationships with a few family members, old friends, and he was socially “fine with people [he knows] outside of family.” See July 2012 VA examination report. In July 2013, he referenced his support system and “commitment to loved ones.” See July 2013 VA treatment records. Also, in July 2015, he reported to be the primary caretaker for both of his parents and had “concerns about their well-being as usual.” See July 2015 VA treatment records. These noted relationships demonstrate that the Veteran did not have significant social impairment. Occupationally, the Veteran retired from his full-time job as a payroll technician in August 2010 because, as he stated to the examiner, “I planned my retirement so that once I had enough time with the federal government, I would have enough money saved up in different accounts….” See July 2012 VA examination report. The record does not reflect he experienced any altercations with coworkers or managers at his job prior to his retirement. Overall, this evidence reflects that the Veteran found it difficult to establish and maintain effective work and social relationships, but he was not unable to do so. At the Veteran’s mental health appointments, he was regularly noted to be well groomed, pleasant, and exhibited proper thought and communication. See, e.g., September 2013, May 2014, February 2015 VA treatment records. In February 2015, the Veteran reported suffering from “poor energy level, decreased concentration, and anhedonia,” but he consistently displayed proper orientation, congruent affect, and “fair to good judgment” with “normal” speech throughout the appeal period. See, e.g., May 2014 VA treatment records. Additionally, while the Veteran reported a “verbal altercation with someone in [a] store parking lot” the record does not reflect the Veteran’s general behavior is impaired or that he had an issue with impulse control. See August 2013 VA treatment record. In April 2015, the Veteran reported an increase in symptoms, including “intermittent panic attacks and severe anxiety,” but this increase in symptoms does not rise to the level of a 70 percent disability rating. Finally, the Veteran consistently denied any suicidal or homicidal ideation at VA appointments. See, e.g., August 2013 and February 2015 VA treatment records. Taking the entire record into consideration prior to March 11, 2019, the Board finds the lay and medical evidence, such as that described above, more closely approximates a 50 percent rating in determining the level of the Veteran’s social and occupational impairment. Undoubtedly, the Veteran’s symptoms increased throughout the appeal period, but the evidence does not more closely approximate “social and occupational impairment in most areas,” the criteria for the next highest rating. See 38 C.F.R. § 4.130. Accordingly, the Board must deny the Veteran’s claim for an increased rating greater than 50 percent for his service-connected MDD, prior to March 11, 2019. From March 11, 2019 After review of the evidence from March 11, 2019, the Board finds the Veteran’s psychiatric symptoms do not warrant a disability rating greater than the currently assigned 70 percent, as he does not have total social and occupational impairment. The Veteran’s psychiatric symptoms, stated in the analysis above, have continued from March 11, 2019. See March 2019 VA examination report. Socially, after his father’s death in 2018, the Veteran states he now lives with a “registered emotional support dog” and has a girlfriend of four years who “is his only support.” See March 2019 VA examination report. This evidence reflects that the Veteran does not have total social impairment because he still has some ability to establish and maintain effective relationships, albeit with difficulty. Additionally, the Veteran has denied any delusions or hallucinations, is properly oriented to time and place, and does not have severe memory loss. See, e.g., March 2019 VA examination report. The record reflects the Veteran is capable of completing activities of daily living and exhibits appropriate hygiene and appearance at appointments. Id. The VA examiner found the Veteran exhibited suicidal ideation, but this was not expounded upon by the examiner and the Veteran was not found to be a persistent danger to himself or others. Id. The record also does not show any unprovoked violence or grossly inappropriate impulse control. Id. The Board finds these facts show the Veteran does not exhibit total occupational and social impairment; he is not grossly inappropriate or a persistent danger of hurting himself or others and does not have gross impairment of his thought and communication, factors to be considered for the next highest rating. As such, the Board finds the Veteran’s symptoms greatly impair his mood and ability to appropriately and affectively function, but they do not rise to the level of total social or occupational impairment. Thus, the criteria for a finding of a 100 percent evaluation, the next higher evaluation, are not met. Accordingly, the preponderance of the evidence does not support the Veteran’s claim and the Board finds the criteria for an increased disability rating in excess of 70 percent for MDD from March 11, 2019 are not met. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. TDIU Total disability will be considered to exist where there presently is any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. See 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining whether a veteran can secure, follow, and maintain a substantially gainful occupation, the Board must consider: (1) the Veteran’s occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Prior to March 11, 2019 Prior to March 11, 2019, the Veteran was service-connected for the following disabilities: (1) MDD at 50 percent, (2) lumbar spine degenerative disk disease (DDD) with right lower extremity neuropathy at 20 percent, (3) tinnitus at 10 percent, and (4) a noncompensable rating for left ear hearing loss. See August 2019 rating decision codesheet. This produced a combined evaluation of 60 percent. Id. As a result, he did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a) prior to March 11, 2019. However, when the percentage requirements are not met, entitlement to TDIU may be considered on an extraschedular basis when the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign extra-schedular TDIU in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). However, it may determine whether the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, and then refer the issue to the Director of the Compensation Service, for a determination in the first instance as to whether the Veteran is entitled to TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b). Accordingly, the Board will analyze whether the evidence of record prior to March 11, 2019 demonstrates the need for a referral to the Director of the Compensation Service for extraschedular consideration. After a review of all of the evidence, the Board finds that the Veteran’s service-connected MDD and lumbar spine DDD did not render him unable to secure or follow a substantially gainful occupation prior to March 11, 2019. The Veteran lacks one year in completing a Bachelor of Arts degree. See September 2013 VA treatment records. He worked in the legal field until he was hired by the Department of Defense as a payroll technician, where he worked until his retirement in 2010. Id. The Board finds he has the occupational background, skill, and training to secure and maintain similar occupations in various fields. Physically, the Veteran’s lumbar spine DDD did not render the Veteran unable to work prior to March 11, 2019. In June 2013, the Veteran stated his back disability required medication “which allowed [him] to go about [his] day without pain.” See June 2013 NOD. In his February 2015 Form 9, the Veteran stated that “the VA doctor stopped giving him a drug that helped” and, later that year, a September 2015 VA examiner found the Veteran’s lumbar spine DDD resulted in “moderate impairment of standing, lifting, bending, and sitting.” See September 2015 VA examination report. Even with these moderate impairments, the record reflects the Veteran reported being the primary caretaker for his ailing mother and father, from 2015 to 2018, which undoubtedly required some level of physical labor. See, e.g., May 2015 VA treatment records. This evidence prior to March 11, 2019 reflects the Veteran had the physical ability to perform the type of activities required by his prior occupations. The Board notes the Veteran has not made any contentions on the effect his service-connected tinnitus and left ear hearing loss have on his employability. Mentally, the Veteran’s MDD did not render the Veteran unable to work prior to March 11, 2019. The Veteran contends he had been “offered work and simply can’t because [he] has enough trouble getting out of bed in the morning to face the day.” See June 2013 NOD. He also reported difficulty “being around large crowds,” but alternatively stated in the record that he got “along fine with people [he knows] outside of family.” See July 2012 VA examination report; see also September 2013 VA treatment records. Overall, the Veteran’s most prominent symptoms in the record include depression, high anxiety, and sleep impairment. See, e.g., November 2014 VA treatment records. While these symptoms are not insignificant, the record does not show the Veteran is unable to work due to them. For example, he is not found to be a danger to himself or others, he regularly displays proper thought and communication, and VA clinicians find his general behavior and affect congruent with his mood. See, e.g, September 2013, May 2014, February 2015 VA treatment records. Based on the record, the Board finds the Veteran’s psychiatric symptoms do not prevent him from maintaining substantially gainful employment. The medical and lay evidence does not indicate that the Veteran’s service-connected disabilities alone render him unemployable. The law is clear that only service-connected disabilities may be considered in a claim of entitlement to a TDIU. See 38 C.F.R. § 4.16(a). The evidence of record does not support the claim that his service-connected disabilities alone are sufficient to produce unemployability so as to warrant referral for extraschedular consideration. Furthermore, in his June 2013 NOD, the Veteran stated he wanted “a disability rating that would allow me to do minimal work, if any, to supplement what I receive in disability…I make very little money from my federal pension.” See June 2013 NOD. However, providing supplemental income to fund retirement is not the purpose of disability ratings. Disability ratings are intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 3.321(a), 3.340, 4.1; Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Therefore, to the extent his service-connected disabilities caused impairment to the Veteran’s earning capacity as a result of exacerbations or illness during the period at issue, he has already been compensated for such impairment at the 60 percent rating. Based on the foregoing, the percentage criteria set forth in 38 C.F.R. § 4.16(a) have not been met for the appeal period in question, and the evidence does not demonstrate that referral under 38 C.F.R. § 4.16(b) to the Director of the Compensation Service for extraschedular consideration is warranted. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU prior to March 11, 2019; the benefit-of-the-doubt doctrine does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. From to March 11, 2019 From March 11, 2019, the Veteran meets the schedular requirement for TDIU under 38 C.F.R. § 4.16(a). The Veteran’s MDD is ratable at 70 percent and his combined rating evaluation is 80 percent. Id. Therefore, the narrow issue before the Board from March 11, 2019 is whether the Veteran has been unable to secure or follow a substantially gainful occupation due to his service-connected physical and psychiatric limitations. The record reflects that the Veteran earned his high school diploma and reported “adequate academic performance in school.” See November 2009 VA treatment records. In the Navy, the Veteran’s military occupational specialty (MOS) was yeoman and primarily he worked in recruitment. See DD Form 214. After the Veteran’s military career, he “studied for a BA in paralegal” and “lacks one year in completing the BA.” See September 2013 VA treatment records. The Veteran reported that “he worked in the legal field until he got a job with the Federal Government from which he retired.” Id. The Veteran retired in 2010 from a U.S. Department of Defense as a payroll technician. See November 2009 VA treatment records. The Board finds the Veteran’s education and occupational skill and training render him able to obtain substantial employment in numerous fields. Physically, the record reflects the Veteran has the same limitations from his service-connected lumbar spine DDD, tinnitus, and left ear hearing loss as analyzed above. Accordingly, as stated above, the Veteran has the physical ability to perform the type of activities required by his prior occupations and those in similar fields. Mentally, the Veteran’s MDD symptoms, described above, have increased in severity. The Veteran contends “he can no longer do the things he used to do, such as hobbies and interests, due to emotional distress.” See March 2019 VA examination report. At the March 2019 VA examination, the psychologist concluded the Veteran had “occupational…impairment with reduced reliability and productivity.” Id. Specifically, she found the Veteran had “down and depressed mood daily, as well as decreased concentration and focus.” Id. She opined that these psychiatric symptoms imply the Veteran “is likely to struggle in an occupational environment in terms of interacting with others and being unable to maintain focus and attention.” Id. Although his symptoms make work difficult, the Board finds this does not mean his psychiatric symptoms render him unable to perform the activities required by the Veteran’s occupational fields, namely in payroll and the legal field. For instance, the VA psychologist noted the Veteran attended his VA appointment on time with his girlfriend and he was “polite and cooperative…oriented…[and wore] appropriate clothing.” Id. The Veteran did not report any memory loss and denied impairment in judgment, thought processes and communication, all of which are essential to the Veteran’s prior payroll and legal office jobs. Id. As such, the Board finds the Veteran’s manifestations of psychiatric symptoms do not prevent the Veteran from working in his occupational field or those similarly related. The Board has considered the Veteran’s contentions and the entire evidence of record. The Veteran’s current service-connected disabilities do not preclude him from substantially gainful employment. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU; the benefit-of-the-doubt doctrine does not apply and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bona, 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.