Citation Nr: 21000452 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 19-16 132 DATE: January 5, 2021 ORDER Entitlement to a disability rating higher than 70 percent for service-connected persistent depressive disorder from October 1, 2016 onwards is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from October 1, 2016 onwards is granted. REMANDED Entitlement to a TDIU prior to October 1, 2016, is remanded. FINDINGS OF FACT 1. From October 1, 2016 onwards, the Veteran’s persistent depressive disorder has caused occupational and social impairment with deficiencies in most areas, but not total occupational and social impairment. 2. However, at least since October 1, 2016, his service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment consistent with his educational and occupational experience. CONCLUSIONS OF LAW 1. From October 1, 2016 onwards, the criteria are not met for a disability rating higher than 70 percent for the persistent depressive disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.126-4.130, Diagnostic Code 9434. 2. But at least since October 1, 2016, the criteria are met for a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1962 to April 1963. Most recently, in December 2019, the Board remanded the claim of entitlement to an increased rating for the service-connected persistent depressive disorder from October 1, 2016 onwards and the derivative TDIU claim partly to obtain needed medical comment concerning the extent of symptoms and consequent occupational and social impairment attributable to the persistent depressive disorder. To this end, the Veteran underwent a VA mental status examination in January 2020 and, after considering the results, the local regional office (RO) increased the rating for his persistent depressive disorder from 30 to 70 percent retroactively effective as of October 1, 2016. However, because the increase to 70 percent did not constitute a full grant of the benefits sought since an even higher 100 percent rating is possible, and he has not indicated he is satisfied or content with the higher 70 percent rating, the granting of this higher rating did not abrogate his pending appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (noting that, in a claim for an increased disability rating, the Veteran generally will be presumed to be seeking the maximum benefit allowed by law and regulation and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded). 1. Entitlement to a disability rating higher than 70 percent for the service-connected persistent depressive disorder since October 1, 2016 As already alluded to, primarily as a result of the additional development of this claim on remand, the Veteran now has a higher 70 percent rating for his service-connected persistent depressive disorder from October 1, 2016, onwards under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, Diagnostic Code 9434. Under this General Rating Formula for Mental Disorders, 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); and inability to establish and maintain effective relationships. Id. A higher 100 percent rating requires 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 symptoms listed in the General Rating Formula for Mental Disorders, so inclusive of Diagnostic Code 9434, are not intended to constitute an exhaustive list, but rather serve as mere examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Furthermore, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has explained that evaluation under 38 C.F.R. § 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 the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms[,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9434. Additionally, consideration is given to the frequency, severity, and duration of psychiatric symptoms, the length of remission, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. See 38 C.F.R. § 4.126(a). That said, when evaluating the level of disability arising from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). It is necessary to evaluate a disability from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. At the outset, the Board notes that, during the pendency of this appeal, the principal medical evidence material to the Veteran’s claim for an increased rating for his persistent depressive disorder is contained in the reports of December 2018 and January 2020 VA examinations as well as an August 2018 private examination by Dr. H.H.G. The remainder of the medical treatment records contain no evidence materially inconsistent with the findings of those examinations as they relate to the Veteran’s disability. For reasons and bases that will be discussed, the Board finds that the 70 percent disability evaluation now assigned is appropriate. The Board has considered the Veteran’s symptoms, irrespective of whether they are specifically listed in the rating criteria and finds that his reported symptoms do not rise to the level of severity required for a higher 100 percent schedular rating. At no time during the period on appeal has his speech been intermittently illogical, obscure, or irrelevant. He has not had grossly inappropriate behavior. He has not neglected his personal appearance and hygiene. He has not had gross impairment in thought processes or communication. He has not had disorientation to time or place or situation. Most importantly, even considering his constellation of symptoms, there is no indication of total occupational and social impairment owing to them. Although private physician H.H.G. noted that the Veteran exhibited persistent delusions or hallucinations, this commenting doctor assessed the Veteran’s persistent depressive disorder, at worst, as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The January 2020 VA examination report corroborates this assessment. This level of impairment is encapsulated by the existing 70 percent rating. See Bowling v. Principi, 15 Vet. App. 1, 11-14 (2001). In making this determination, the Board has considered the Veteran’s personal belief that his symptoms are of such severity as to warrant an even higher 100 percent rating. See McClain v. Nicholson, 21 Vet. App. 319, 325 (2007) (the Board is required to assess the competency and credibility, and therefore probative weight, of all relevant evidence). However, disability ratings are determined by the application of a schedule of ratings which, as already mentioned, is based on the average impairment of earning capacity – including as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which this disability is evaluated, are more probative than the Veteran’s assessment of the severity of his disability. The examinations also considered his competent (subjective) statements regarding the severity of his disability. Furthermore, the currently assigned disability rating accounts for the symptoms that he has reported experiencing during the relevant period at issue and their consequent effects on his occupational and social functioning. See Sellers v. Principi, 372 F.3d 1318 (Fed. Cir. 2004). For these reasons and bases, the Board finds that the preponderance of the evidence is against increasing the Veteran’s disability rating for his persistent depressive disorder to the even higher 100-percent level. As the preponderance of the evidence is against his claim, the benefit-of-the-doubt rule does not apply, and his claim must be denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. Neither the Veteran nor his attorney has raised any other issues, other than the derivative issue of entitlement to a TDIU addressed below, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the record). 2. Entitlement to a TDIU since October 1, 2016 The Veteran filed this derivative claim for a TDIU in November 2019, asserting that he is unemployable because of his service-connected disabilities, so including owing to his persistent depressive disorder. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the RO, i.e., Agency of Original Jurisdiction (AOJ) for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ (RO) fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. Here, while the appeal for an increased rating for the persistent depressive disorder associated with spinal fusion with degenerative arthritis of the spine was pending, the Veteran contended that a TDIU was warranted, in part, based on that disability; therefore, the appeal period for the claim for a TDIU dates back to the grant of service connection, March 7, 2014, as the Veteran expressed disagreement with the initial rating assigned. See Rice, 22 Vet. App. at 453-54; Harper, 30 Vet. App. at 362 (The Notice of Disagreement “placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal.”). As Harper and Payne make clear, the issue of entitlement to a TDIU remains on appeal as part and parcel of the increased rating claim on appeal because it was not granted in full. This is important to point out because, in a July 2020 rating decision, on remand, the RO granted a TDIU retroactively effective as of November 19, 2019, the date of the Veteran’s claim specifically for this benefit. However, for the reasons and bases discussed below, the Board finds that entitlement to a TDIU is warranted at least since October 1, 2016, so as of an earlier effective date. The issue of entitlement to a TDIU prior to October 1, 2016, is addressed in the remand portion of this decision. Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities – provided that, if there is only one such disability, this disability shall be ratable 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 with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). For purposes of determining whether these threshold minimum rating requirements are met, disabilities resulting from common etiology or single accident or affecting both upper or lower extremities are considered one, collective, disability, so, too, are disabilities affecting a single bodily system. Id. It is the established policy of VA that all Veterans who are 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. 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(a)(1), 4.15. If the total rating is based on a disability or combination of disabilities for which the Rating Schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disability(ies) is sufficiently severe to cause unemployability. 38 C.F.R. § 3.341(a). As already alluded to, as a result of remanding the claim, the Veteran now has a higher 70 percent schedular rating for his service-connected persistent depressive disorder associated with the spinal fusion with degenerative arthritis and degenerative disc disease of his spine as of October 1, 2016. Therefore, his claim may be considered on a schedular basis under 38 C.F.R. § 4.16(a), in turn meaning the remaining question is whether his service-connected disabilities preclude him from securing or following a substantially gainful occupation when considering his level of education, prior work experience and training, but not his advancing age or impairment owing to disabilities that are not service connected. On March 14, 2019, so during the pendency of this appeal, the U.S. Court of Appeals for Veterans Claims (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities The Board concludes that the evidence of record supports finding that the Veteran’s service-connected disabilities preclude him from continuing in or returning to the workforce in any substantially gainful (versus just marginal) capacity consistent with his level of education and prior work experience and training. Specifically, there is probative (meaning competent and credible) evidence establishing that the Veteran’s service-connected disabilities cause occupational impairment to the point that he should be considered unemployable. In analyzing the meaning of "substantially gainful employment," Courts have concluded that "the test is whether a particular job is realistically within the physical and mental capabilities of the claimant." Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). It is not necessary to find the Veteran is a total basket case before concluding he is unemployable. Accordingly, he need not establish "100 percent unemployability" to prove an inability to maintain a "substantially gainful occupation"; the use of the word "substantially" suggests an intent to impart flexibility into a determination of his overall employability. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). This critical distinction differentiates a 100 percent schedular rating (i.e., total occupational impairment) for, say, a mental disorder such as the one the Veteran has versus what is required for a TDIU. An August 2018 Psychological Assessment from Dr. H.H.G. noted that the Veteran’s persistent depressive disorder is emotionally debilitating and that he would be unable to sustain the stress from a competitive work environment or be expected to engage in gainful activity. Similarly, an August 2018 medical opinion by Dr. H.S. concluded that the Veteran is unable to maintain substantially gainful employment as a result of limited mobility, severe pain, side effects of medications and physical and mental limitation due to his service-connected conditions. A July 2019 assessment by vocational consultant, S.B., determined that the Veteran is unable to perform his prior work or any work in the national economy as he is totally occupationally disabled due to his service-connected disabilities. Accordingly, on this record, the Board finds that the Veteran’s service-connected disabilities are shown to prevent him from engaging in any substantially gainful employment. Thus, entitlement to a TDIU by reason of his service-connected disabilities is warranted from October 1, 2016 onwards. REASONS FOR REMAND 3. Entitlement to a TDIU prior to October 1, 2016 is remanded. As previously mentioned, to qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100-percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities – provided that, if one disability, it is rated at 60 percent or more, or, for more than one disability, at least one is rated at 40 percent or more and the combined disability rating is 70 percent or more. 38 C.F.R. § 4.16(a). Prior to October 1, 2016, the Veteran had a combined disability rating of 50 percent owing to his persistent depressive disorder then rated as 10-percent disabling, left lower extremity radiculopathy rated as 20-percent disabling, degenerative arthritis of the spine and degenerative disc disease at L3-4, L4-5 rated as 20-percent disabling, tinnitus rated as 10-percent disabling, and noncompensable (0 percent) disability ratings for hemorrhoids, excision of anal fissure, and spinal fusion scar. Therefore, his service-connected disabilities prior to October 1, 2016 do not meet the threshold minimum schedular rating requirements for a TDIU according to 38 C.F.R. § 4.16(a), even when accepting that some of these disabilities have common etiology. That said, even in this circumstance, for Veterans who are unable to obtain or maintain substantially gainful employment by reason of service-connected disabilities, but who fail to meet the percentage criteria set forth in § 4.16(a), may receive extra-schedular consideration under 38 C.F.R. § 4.16(b). Specifically, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). The rating board will include a full statement as the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). There is at least suggestion in the evidence of record that the Veteran was unemployable because of his service-connected disabilities even before October 1, 2016. See, e.g., July 2019 S.B. Vocational Assessment. However, the Board is precluded from granting a TDIU on an extra-schedular basis in the first instance, having instead to first refer the matter to the VA Under Secretary for Benefits or to the Director of Compensation Service for this initial consideration. See 38 C.F.R. § 4.16(b); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director of the Compensation Service or designee determines that an extra-schedular TDIU is not warranted does the Board then have jurisdiction to decide the extra-schedular claim on its merits. See Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015). Therefore, here, because there is evidence the Veteran may have been unemployable due to his service-connected disabilities even before October 1, 2016, the Board is referring the issue of entitlement to a TDIU prior to October 1, 2016, to the appropriate authority to determine whether a TDIU is warranted on an extra-schedular basis during this earlier period under § 4.16(b).   Accordingly, this matter is REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to October 1, 2016, on an extra-schedular basis to the Director of the Compensation Service or designee for consideration pursuant to 38 C.F.R. § 4.16(b). KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Mukherjee 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.