Citation Nr: 20021931 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 19-02 729 DATE: March 27, 2020 ORDER A 70 percent disability rating is granted for persistent depressive disorder with anxious distress, subject to the law and regulations governing the award of monetary benefits. An effective date of April 29, 2014, but not earlier, for the grant of service connection for persistent depressive disorder with anxious distress is granted. Compensation for total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least in equipoise with respect to whether the Veteran’s depressive disorder has been manifested by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. 2. The Veteran filed a claim for mental health disability on May 30, 2013, but the first evidence of manifestation of a mental health disability is April 29, 2014. 3. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities is, at least, in relative equipoise. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for a 70 percent rating for the Veteran’s persistent depressive disorder with anxious distress have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.130, Diagnostic Code 9433. 2. The criteria for an effective date of April 29, 2014, but not earlier, for the award of service connection for persistent depressive disorder with anxious distress, have been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. Resolving reasonable doubt in the Veteran’s favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from March 1987 to February 2009. He also had service in the Army National Guard. In his brief on appeal, the Veteran’s attorney asserted that the Veteran was unable to secure gainful employment as a result of his service-connected disability. In light of that assertion, the Board has expanded the appeal to include the matter of his entitlement to a TDIU. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (if, in connection with making a claim for the highest rating possible for a disability, a claimant submits evidence of a medical disability, and evidence of unemployability, the matter of the claimant’s entitlement to a TDIU is considered a component of the claim for a higher rating). 1. Entitlement to a disability rating in excess of 30 percent for persistent depressive disorder with anxious distress. The Veteran contends his psychiatric disability is more severe than the currently assigned 30 percent rating reflects. Disability evaluations are determined by the application of a schedule of ratings, which is, in turn, based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. Where, as in the present case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. If 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran is currently rated 30 percent for his service-connected persistent depressive disorder with anxious distress. 38 C.F.R. § 4.130, Diagnostic Code 9433. Under that diagnostic code, a 30 percent rating is warranted if the disorder is manifested by occupational and social impairment with an 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), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted if the disorder is manifested by 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. A 70 percent rating is warranted if the disorder is manifested by 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 that is 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 an inability to establish and maintain effective relationships. The highest available rating, 100 percent, is warranted if the disorder is manifested by 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 oneself or others; an intermittent inability to perform the activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, one’s own occupation, or one’s own name. 38 C.F.R. § 4.130, Diagnostic Code 9433; see also Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002) (indicating that the Secretary’s use of the phrase “such symptoms as,” followed by a list of examples, provides guidance as to the severity of symptoms contemplated for each rating, in addition to permitting consideration of other symptoms, particular to each Veteran and disorder, and the effect of those symptoms on the claimant’s social and work situation). Following a review of the relevant evidence in this case, and the applicable laws and regulations, it is the Board’s conclusion that the evidence supports a rating of 70 percent for the Veteran’s persistent depressive disorder. In November 2016, the Veteran submitted a private disability benefits questionnaire, completed April 2014. The private physician diagnosed the Veteran with “mood disorders secondary to medical conditions.” She noted that the Veteran as socially isolated and withdrawn. The Veteran’s private physician reported that the Veteran suffered from total occupational and social impairment. His relevant mental health symptoms included depressed mood; anxiety; suspiciousness; chronic sleep impairment; mild memory loss; flattened affect; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. The private physician also noted the Veteran’s passive suicidal ideation. The Veteran was afforded a VA examination in May 2018. The examination included a diagnosis of persistent depressive disorder with anxious distress. The Veteran reported enjoying woodworking and fishing. He reported socializing on Facebook and going out with his wife. The examiner summarized the Veteran’s persistent depressive disorder as causative of occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Relevant mental health history was reported to include depressed mood, anxiety, difficulty in establishing and maintaining effective work and social relationships. A March 2019 VA treatment record shows a PHQ-2 depression screening test score of 5, which is positive for depression. The Veteran indicated he had little interest or pleasure in doing things, nearly every day; and felt down, depressed, or hopeless, more than half the days. The Veteran submitted another private disability benefits questionnaire and addendum report completed by a psychologist in December 2019. The Veteran was noted to be married for 25 years with two adult children. The Veteran had a history of leaving or losing several jobs, most recently in February 2017 due to his temper and attitude. The private psychologist recorded symptoms such as depressed mood; anxiety; suspiciousness; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work-like setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene; and, suicidal ideation. The December 2019 private psychologist noted that the Veteran endorsed suicidal ideation approximately every three months. She found him coherent and cooperative during the interview, mildly anxious, with full range of affect, logical and linear thought, and adequate attention, concentration, and memory. The psychologist noted that the difficulties with daily living included the Veteran not wanting to get out of bed and showering every now and then but brushing his teeth twice per day. She opined that the Veteran had occupation and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The Veteran submitted two “buddy statements” from his wife and son in January 2020. His son stated that the Veteran has been struggling with anxiety, trouble sleeping, isolation, and memory loss. He noted that the Veteran is often overly worried about bad things happening. The Veteran’s wife stated his symptoms have worsened in the last few years. She describes his symptoms of nightmares, trouble sleeping, extreme mood swings, paranoia, isolation, and lack of motivation. Resolving doubt in the Veteran’s favor, the evidence shows occupational and social impairment with deficiencies in most areas. The Court of Appeals for Veterans Claims recently held that the language of 38 C.F.R. § 4.130 indicates that “the presence of suicidal ideation alone, that is, a Veteran’s thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas.” Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). Medical and lay evidence detail the Veteran’s most severe psychiatric symptoms: his history of suicidal thoughts, isolative behaviors, deficiencies in his family relationships, impaired impulse control, memory loss, decreased motivation and mood affecting the ability to function appropriately and effectively, and inability to establish and maintain effective relationships. Therefore, the Board finds the Veteran’s depression and anxiety symptoms support a 70 percent rating. However, the Board does not find that the Veteran’s mental health symptoms cause total occupational and social impairment. The Board has considered the April 2014 private examiner’s finding of such but finds the evidence is more consistent with a 70 percent rating. Indeed, the 70 percent criteria compensate for affects on the ability to function independently, appropriately, and effectively, which is responsive to the private providers notation that the Veteran’s son did his shopping, he only prepared meals once per week, and he neglected household chores. However, the April 2014 report indicates the Veteran functions at a level beyond total impairment; he reported doing the dishes every three days, doing laundry every two days, showering approximately two to three times per week, and managing his household finances through a budget and bookkeeping system. Indeed, at the subsequent evaluations, the Veteran reported relationships with his family, going out with his wife, woodworking, fishing, and brushing his teeth twice per day. Although the April 2014 evaluator noted the Veteran’s speech was slowed, he interacted affectively with all evaluators. The evidence does not show gross impairment of thought or communication, grossly inappropriate behavior, disorientation, an inability to perform the activities of daily living, or symptoms of similar severity, duration, or frequencies as to cause total impairment. On balance and taking into account the totality of the evidence—including the evidence of the Veteran’s job instability, his difficulty adapting to stressful circumstances (including work or a worklike setting), and suicidal ideation—the Board is persuaded that the criteria for a rating of 70 percent for the Veteran’s persistent depressive disorder were met. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 C.F.R. § 4.3. 2. Entitlement to an effective date earlier than May 23, 2018, for the grant of service connection for persistent depressive disorder with anxious distress. Generally, for an award based on an original claim, claim reopened after a final disallowance, or claim for an increased rating, the effective date is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. A claim for VA compensation must generally be in the form prescribed by the VA Secretary. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Effective March 24, 2015, claims are required to be filed on standard forms, thus eliminating constructive receipt of claims and informal claims. See 79 Fed. Reg. 57660 (Sept. 25, 2014). Prior to March 24, 2015, a “claim” was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). Any communication or action, however, received from the claimant, or certain specified individuals on the claimant’s behalf, that indicated intent to apply for a benefit, and identified that benefit, could be considered an informal claim. 38 C.F.R. § 3.155(a). The Veteran requests an effective date prior to May 23, 2018, for the award of service connection for persistent depressive disorder with anxious distress. The Veteran, by way of his attorney, asserts that an earlier effective date is warranted because the records and private examinations consistently show symptoms minimally consistent with occupational and social impairment with deficiencies in most areas since at least the filing of the claim. See January 2020 Attorney Brief. The United States Court of Appeals for Veterans Claims (Court) has found that if a veteran files a claim for benefits before the disability manifests, the effective date cannot be earlier than the date the disability eventually manifested; which is the date of entitlement. McGrath v. Gober, 14 Vet. App. 28, 35 (2000); Ellington v. Peake, 541 F. 3d 1364, 1369 (2011) (holding that it was illogical to award benefits on a certain date “when the evidence indicates that those conditions did not develop until some later date”). In this case, the Veteran first filed a claim for depression received May 30, 2013. In a February 2014 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for depression and erectile dysfunction. The file shows a fax cover sheet received June 2014 that states “NOD w Evidence on Rd 2/14/2014.” The correspondence does not identify which issue or issues the Veteran wished to appeal. The remainder of the June 2014 correspondence was not received until November 2016. It appears the Veteran’s representative intended to submit an appeal but never confirmed that the documents had been received by VA. At that time, VA regulations stated that while special wording was not required, a notice of disagreement must construe disagreement with an adjudicative determination, desire for appellate review, and if determinations were made on several issues at the same time, the specific determinations with which the claimant disagrees must be identified. 38 C.F.R. § 20.201 (2013). In the January 2019 rating decision and September 2019 statement of the case, the AOJ considered the June 2014 correspondence to be a notice of disagreement. The Board is not inclined to overrule that favorable determination. Moreover, the November 2016 submission of evidence and argument was not accompanied by a claim form as required for all claims received beginning March 24, 2015; therefore, there is no other claim of record. At the time of the May 30, 2013 claim, the evidence did not show a current mental health disability. The question before the Board is at what point subsequent to May 20, 2013, does the evidence show the service-connected disability manifested. The first time the evidence of record shows a mental health diagnosis is April 29, 2014, the date the private evaluation was completed. The May 2018 VA examiner did not discount the April 2014 diagnosis but stated Persistent Depressive Disorder with Anxious Distress was more fitting of the Veteran’s mood symptoms. The Board resolves doubt in the Veteran’s favor and finds the April 2014 evaluation evidenced a manifestation of the currently service-connected disability. The Veteran has not identified any evidence or date prior to April 29, 2014, that could provide for an earlier effective date. Thus, April 29, 2014, is the appropriate effective date for the grant of service connection for Persistent Depressive Disorder. See McGrath, 14 Vet. App. at 35; Ellington, 541 F. 3d at 1369. 3. Entitlement to compensation for TDIU. TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with his education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In the present case, the Board finds that the Veteran meets the threshold requirements for a schedular award of TDIU. He is currently in receipt of a 70 percent rating for persistent depressive disorder; a 10 percent disability rating for left knee strain; a 10 percent rating for right knee strain; a 10 percent rating for right ankle condition; a 10 percent rating for carpal tunnel right wrist; a 10 percent rating for left wrist condition; a 10 percent rating for right hip condition; a 10 percent rating for left hip condition; a 10 percent rating for tinnitus; a 10 percent rating for right acromioclavicular joint osteoarthritis; and noncompensable ratings for a left foot condition, left hand condition, bilateral hearing loss, and sharp pains in the hand. As previously discussed, the Veteran’s claim for TDIU was raised pursuant to Rice v. Shinseki, 22 Vet. App. at 453. Following review of the file and resolving reasonable doubt in favor of the Veteran, the Board is satisfied that the competent and probative evidence demonstrates that the Veteran’s service-connected disability render him unemployable. The record indicates that the Veteran is a high school graduate. He did not attend college. Following service, the Veteran worked as a stock person, janitor, and assembly line worker. He reported he last attempted to work in February 2017 but did not continue due to his “temper and attitude.” See May 2018 VA examination; December 2019 disability benefits questionnaire. The Veteran submitted an April 2014 private disability benefits questionnaire, received November 2016. H.H.-G. opined in her report that the Veteran’s psychiatric symptoms prevents him from maintaining substantially gainful employment. She indicated that there is a causal relationship between his physical disabilities and mood disorder complaints. She further indicated that individuals with these types of medical issues and mood disorder become disabled due to the holistic effect of the medical and psychiatric disturbance. The Veteran was afforded a VA examination in May 2018. The examiner opined that the Veteran’s current mental condition likely make it more difficult for him to negotiate the social aspects of his job unless he works primarily alone, or his job duties do not require regular contact or interactions with people. He may also experience his mental or psychological pain as physical pain, further magnifying the perceived pain he has from his medical conditions consequently limiting his perceived ability to do physical work. In the December 2019 private disability benefits questionnaire, E.S. opined that it is more likely than not that the Veteran is unable to sustain gainful employment due to persistent depressive disorder. She remarked that the Veteran has been unable to manage and cope with workplace stressors since military discharge. He experienced feeling overwhelmed by interpersonal impairments and his depressed/irritable mood to the extent that he has not been able to maintain three different jobs in a short period of time. She stated that his symptoms effectively impair his ability to maintain gainful employment and to perform effectively in the workplace. The final determination with respect to a veteran’s entitlement to TDIU is an adjudicatory, and not a medical, function. Nevertheless, the findings reflected in the medical reports are highly probative. The most recent evidence indicates that the Veteran is currently unemployed, and the evidence indicates he has been unable to maintain employment. Under the circumstances, in light of the totality of the record, and resolving doubt in the Veteran’s favor, the Board finds the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Compensation for TDIU is therefore granted. A. P. Armstrong Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Kettler, 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.