Citation Nr: 21000517
Decision Date: 01/05/21	Archive Date: 01/05/21

DOCKET NO. 15-41 468
DATE: January 5, 2021

ORDER

Entitlement to an increased initial disability rating in excess of 50 percent for depressive disorder due to hepatitis C, with major depressive-like episode, is denied.

For the appeal period prior to October 24, 2016, entitlement to referral to the Director of Compensation for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) is denied.

For the appeal period on and after October 24, 2016, entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular basis under 38 C.F.R. § 4.16(a) is denied.

FINDINGS OF FACT

1. The severity, frequency, and duration of the Veteran’s symptoms of his depressive disorder did not more closely approximate occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during the appeal period. 

2. For the appeal period prior to October 24, 2016, the most competent, credible, and probative evidence of record weighs against finding that there exists a reasonable possibility that the Veteran’s service-connected disabilities, alone, were of such nature and/or severity as to prevent him from securing or following substantially gainful employment.

3. For the appeal period on and after October 24, 2016, the most competent, credible, and probative evidence of record weighs against finding that the Veteran’s service-connected disabilities, alone, are of such nature and/or severity as to prevent him from securing or following substantially gainful employment.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an increased initial disability rating in excess of 50 percent for depressive disorder due to hepatitis C, with major depressive-like episode, and for staged ratings, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434.

2. For the appeal period prior to October 24, 2016, the criteria for entitlement for referral to the Director of Compensation for TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 501, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.25.

3. For the appeal period on and after October 24, 2016, the criteria for an award of TDIU on a schedular basis have not been met. 38 U.S.C. §§ 501, 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19, 4.25. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Air Force from March 1970 until his discharge, under honorable conditions, in July 1972.

These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision by the Seattle, Washington, Regional Office (RO) of the United States Department of Veterans Affairs (VA), which, among other things, granted service connection for depressive disorder due to hepatitis C, with major depressive-like episode, with an initial disability rating of 50 percent effective August 20, 2014; and from a September 2016 rating decision of the same RO, which denied a total disability rating based on individual unemployability (TDIU).

In January 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ), sitting at the RO in Seattle, Washington. A transcript of the hearing has been associated with the record on appeal.

In April 2019, the Board remanded the case to the RO for further development.  Specifically, the Board directed the RO to obtain relevant records identified by the Veteran and to obtain a VA examination as to the current severity of his depressive disorder.

The Board finds that there has been substantial compliance with the Board’s previous remand directives regarding the issues on appeal. Stegall v. West, 11 Vet. App. 268, 271 (1998).

Evidentiary Standards

In deciding ratings claims, including TDIU, it is the Board’s responsibility to evaluate the entire record on appeal. 38 U.S.C. § 7104(a). VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. Golden v Shulkin, 29 Vet. App. 221, 224 (2017) (citation omitted); see 38 C.F.R. §§ 4.1, 4.6. 

Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336–37 (Fed. Cir. 2006). The lack of contemporaneous medical evidence, however, can be considered and weighed against a veteran’s lay statements. Id. 

The Board, as factfinder, is responsible for assessing the credibility and weight to be given to evidence. Id. at 1337. When assessing the credibility of lay documentary evidence, the Board may consider factors such as facial plausibility, bias, self-interest, internal consistency, and consistency with other evidence of record. Caluza v Brown, 7 Vet. App. 498, 511 (1995); Southall-Norman v. McDonald, 28 Vet. App. 346, 355 (2016). When assessing oral testimony before the Board, the Board may consider the demeanor of the witness(es), the facial plausibility of the testimony, and the consistency of the testimony with other testimony and affidavits submitted on behalf of the veteran. Caluza, 7 Vet. App. at 511.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996).

The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128‒29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analyses that follow focus on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claims.

1. Entitlement to an increased initial disability rating in excess of 50 percent for depressive disorder due to hepatitis C, with major depressive-like episode

Disability Ratings

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Diagnostic Codes (DCs) are assigned to individual disabilities and provide rating criteria specific to a particular disability. 

Applicable here are the legal concepts of an initial rating and staged ratings. An initial rating is one assigned at the time service connection is granted. See Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 3.321. Separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Fenderson,12 Vet. App. at 126. A staged rating is a rating that looks backwards and retroactively assigns specific ratings to discrete periods. See Reizenstein v. Shinseki, 583 F.3d 1331, 1337 (Fed. Cir. 2009). This practice accounts “for the possible dynamic nature of a disability while the claim works its way through the adjudication process.” O’Connell v. Nicholson, 21 Vet. App. 89, 93 (2007); see also 38 C.F.R. § 4.1. The effective date for a staged rating is when it is factually ascertainable that a particular rating is warranted. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007).

Disability Rating – Depressive Disorder

Under the General Rating Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130, the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The symptoms listed in VA’s General Formula are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114‒18 (Fed. Cir. 2013).

The General Formula, 38 C.F.R. § 4.130, DC 9434 (Major Depressive Disorder), provides, in pertinent part, as follows:

 	Rating (%)

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.	100

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 worklike setting); inability to establish and maintain effective relationships.	70

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.	50

38 C.F.R. § 4.130, DC 9434 does provide for ratings lower than 50 percent. In this case, however, the Veteran received an initial disability rating of 50 percent. Thus, an analysis of the ratings lower than 50 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran’s current rating. See 38 C.F.R. § 3.344. 

Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner’s assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).

The United States Court of Appeals for the Federal Circuit held 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.” Vazquez-Claudio, 713 F.3d at 116‒17. 

Analysis

Initial Disability Rating

When an initial rating decision is on appeal, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at those times and should be the evidence used to decide whether an original rating was erroneous. Fenderson, 12 Vet. App. at 126. The Veteran filed his claim in August 2014 and the RO issued an initial 50-percent disability-rating decision in December 2014. Thus, the Board looks to the relevant evidence in and around August 2014 through December 2014 (and around that time) to determine the appropriate initial disability rating. When the Board references the “appeal period” during the following analysis, it is referring to the time frame in and around August 2014 through December 2014 (and around that time).

Utilizing the non-exhaustive symptoms set forth in the General Formula and looking at all relevant evidence holistically, for the reasons that follow, the Board finds the Veteran’s symptoms most closely approximated the symptoms associated with a 50-percent initial disability rating, rather than a 70-percent or 100-percent initial disability rating, in and around August 2014 to December 2014. 

The Board will first address the medical evidence of record and then turn to the lay evidence of record. 

Looking back one year to establish a holistic context for the Veteran’s ongoing depressive disorder symptoms, the Board finds numerous VA mental health notes of relevance. In a December 2013 VA mental health note, the Veteran reported he had little interest or pleasure in doing things “every day” in the past month. He felt down, depressed, or hopeless “nearly every day.” He had trouble falling asleep, staying asleep, or sleeping too much “more than half the days” in the past month. He felt tired or had little energy “nearly every day.” He had trouble concentrating on things, such as reading the newspaper or watching television, for “several days.” These problems made it “very difficult” for him work, take care of things at home, or get along with other people. He felt anxiety or panic less than half of the days in the past month. He did not report any issues with appetite, feeling bad about himself, moving or speaking slowly, being fidgety or restless, and he denied suicidal ideations. He had strong social and/or family support, which included his church. 

In a January 2014 VA mental health note, the Veteran reported “worsened depression.” He had little interest or pleasure in doing things for “several days” over the last month. He felt down, depressed, or hopeless “nearly every day.” He had trouble falling asleep, staying asleep, or sleeping too much “nearly every day.” He felt tired or had little energy “more than half the days” over the preceding month. He now reported a poor appetite or overeating “nearly every day.” He now reported feeling bad about himself “several days” out of the month. He had trouble concentrating on things for “several days.” He reported moving or speaking slowly such that others noticed for “several days.” These problems made it “somewhat difficult” for him work, take care of things at home, or get along with other people. He felt anxiety or panic less than half of the days in the past month. He did not report any suicidal ideations. 

In a March 2014 VA mental health note, the Veteran reported he felt down, depressed, or hopeless “several days.” He had trouble falling asleep, staying asleep, or sleeping too much “nearly every day.” He felt tired or had little energy “nearly every day.” He reported a poor appetite or overeating on “several days.” He reported feeling bad about himself “several days” out of the month. He had trouble concentrating on things “nearly every day.” He reported moving or speaking slowly such that others noticed on “several days.” These problems made it “somewhat difficult” for him work, take care of things at home, or get along with other people. He felt anxiety or panic less than half of the days in the past month. He did not report a loss of interest or pleasure in doing things, which he had reported in the previous VA mental health notes. Nor did he report any suicidal ideations. He reported spending “some” time with supportive individuals. 

In an April 2014 VA mental health note, the evaluator recorded “clinically significant improvement” of the Veteran’s depression and that his symptoms were improving over time. The Veteran again reported having a loss of interest or pleasure in doing things on “several days.” He felt down, depressed, or hopeless for “several days.” He had trouble falling asleep, staying asleep, or sleeping too much on “several days,” as opposed to every day, previously. He felt tired or had little energy “nearly every day.” He had trouble concentrating on things on “several days,” as opposed to every day, previously. These problems made it “somewhat difficult” for him work, take care of things at home, or get along with other people. He still felt anxiety or panic less than half of the days in the past month. He no longer reported poor appetite or overeating, feeling bad about himself, or moving or speaking slowly such that others noticed. Nor did he report any suicidal ideations. He again reported spending “some” time with supportive individuals.

In a June 2014 VA mental health note, the Veteran reported that he felt down, depressed, or hopeless “nearly every day.” He felt tired or had little energy “nearly every day.” He had trouble concentrating on things on “several days.” These problems made it “somewhat difficult” for him work, take care of things at home, or get along with other people. He no longer reported having a loss of interest or pleasure in doing things, trouble falling asleep, staying asleep, or sleeping too much, or experiencing anxiety or panic since the last evaluation. Nor did he report poor appetite or overeating, feeling bad about himself, or moving or speaking slowly such that others noticed, or any suicidal ideations. He again reported spending “some” time with supportive individuals. 

As to the December 2013, January 2014, March 2014, April 2014, and June 2014 VA mental health notes, the Board finds that the Veteran was competent to report his feelings, symptoms, sensations, and experiences as they were recorded within each respective VA note. Jandreau v. Nicholson, 493 F.3d 1372, 1377 (Fed. Cir. 2007) (noting general competence of laypersons to testify as to symptoms but not medical diagnosis). The Board also finds the Veteran’s reports credible and probative as to the severity, frequency, and duration of his depressive disorder symptoms over the time period. 

The Veteran appeared for mental health assessment in August 2014, during which an evaluation was conducted using the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). See August 2014 VA Mental Health Team Note. The Veteran reported symptoms of depressed mood nearly every day. He had low energy, feelings of hopelessness, was irritable, had challenges with focus and concentration at times, poor sleep, an irritable mood, racing thoughts, and decreased appetite. Because of his depressed mood, he had a lack of enjoyment in life. He denied suicidal ideations. He stated he was coping by working, watching TV/movies, reading the Bible, and volunteering as a local church where he served as Deacon. He reported his symptoms impacted his relationships and work performance. He explained that he often isolated himself from his family at home and was not as affectionate as he would like to have been. He reported that his irritable mood led to disciplinary problems at work, which caused him to be suspended without pay and a change of jobs where he was isolated from working with certain people.

The evaluator found the Veteran was alert and oriented. His appearance was appropriate, and his attitude was cooperative. His affect was congruent with his mood, which was dysphoric. His speech was normal in rate and rhythm. He was organized and goal-directed in his speech and through process. He denied hallucinations or delusions. His insight and judgment were good. He was placed on Sertraline in August 2014.

The Veteran appeared for a follow up in September 2014 during which an evaluation was conducted using the DSM–5. See September 2014 VA Mental Health Team Note. At that time, the clinical diagnosis was “unspecified depression disorder.” The Veteran reported he had returned to work, but felt irritated after a conflict at work, which was resolved with no negative consequences. He stated that he often “becomes angry and defensive when confronted and typically says what is on his mind.” He recognized this was a problematic pattern of behavior and was willing to work on it to avoid negative consequences. He denied suicidal or homicidal ideations. 

The evaluator found the Veteran was alert and oriented. His appearance was appropriate, and his attitude was cooperative. His affect was congruent with his mood, which was controlled. His speech was normal in rate and rhythm. He was organized and goal-directed in his speech and thought process. He denied hallucinations or delusions. His insight and judgment were fair. The evaluator commented that the Veteran “actively participated in the session with no behavioral concerns.” 

As to the August 2014 and September 2014 VA mental health notes, the Board finds that the Veteran was competent to report his feelings, symptoms, sensations, and experiences as they were recorded within each respective VA note. The Board also finds the Veteran’s reports credible and probative as to the severity, frequency, and duration of his depressive disorder symptoms over the time period. As to the evaluators’ respective observations and impressions of the Veteran, absent evidence to the contrary, the Board finds each evaluator is competent. See generally Cox v. Nicholson, 20 Vet. App. 563, 569 (2007) (the competence of VA examiners is presumed absent evidence to the contrary). The Board also finds each of the evaluators is credible as the Board finds proper utilization of the DSM-5, and there is no evidence of bias or motivation to lie. The Board also finds the evaluators’ respective observations and impressions significantly probative of the Veteran’s depressive disorder as each evaluator relied on accurate facts, considered the Veteran’s medical history and lay statements, and each evaluation contains pertinent information to the Veteran’s disability picture. 

In November 2014, the Veteran presented for a VA examination as to his depressive disorder. The examiner reviewed the Veteran VA claims file, VA medical records, and military service treatment records. The examiner documented the Veteran’s lay statements as to his social, medical, and occupational history. The Veteran reported that he lived with his wife, daughter, and grandson at the time of the examination. He denied “friends” but endorsed “church brothers,” and he regularly attended church. At the time of the examination, the Veteran had worked for a roofing company for 13 years. He identified an ongoing depressed mood. When subjectively rating his mood on a scale (zero representing no depression whatsoever and ten representing the most depression imaginable), he rated his mood as a seven or eight. He reported the primary reason for his depressed mood was his diagnosis of hepatitis C and his greatest fear was infecting his wife, which impacted their intimacy. He endorsed decreased interest in previously pleasurable activities, including going to the gym, playing basketball, and working on cars. He had a decreased appetite. He reported sleep issues, including insomnia. He noted ongoing fatigue and concentration problems. He denied feelings of worthlessness, though he noted, “it feels like I’m just waiting to die.” He denied current or past suicidal or homicidal ideations.

The examiner recorded the Veteran’s symptoms, to include depressed mood, suspiciousness, chronic sleep impairment, mild memory loss, impairment of short- and long-term memory, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances, including work or worklike setting. The Veteran was competent to handle his financial affairs. The examiner observed the Veteran was on time for his appointment and was appropriately dressed. He was oriented. He demonstrated remote memory and concentration issues. He was able to follow commands. He properly interpreted proverbs supplied to him by the examiner and exercised clear judgment. 

The examiner opined that the Veteran’s level of occupation and social impairment was best categorized as “occupation and social impairment with reduced reliability and productivity.” November 2014 VA Mental Disorders Disability Benefits Questionnaire (DBQ). 

Absent evidence to the contrary, the Board finds the November 2014 VA examiner is competent to provide his observations, impressions, and opinion as to the Veteran’s depressive disorder. Cox, 20 Vet. App. at 569. The Board also finds the examiner is credible as the evidence demonstrates proper utilization of the DSM-5 and does not demonstrate the examiner had bias or motivation to lie. Buchanan, 451 F.3d at 1337. The Board finds the examiner’s observations, impressions, and opinion significantly probative of the Veteran’s depressive disorder in and around November 2014 as the examination relied on accurate facts, considered the Veteran’s medical history and lay statements, and contains pertinent information to the Veteran’s disability picture.

Following his VA examination, the Veteran appeared for a clinical evaluation by his primary care professional in November 2014. The Veteran reported progress since his September 2014 session. The evaluator recorded the Veteran stated, “I’m good . . . no issues or concerns.” November 2014 Mental Health Team Note (ellipses in original). The Veteran reported lessened irritability and improved communication with his spouse. He was getting along at work “ok” and was adapting to new management. The Veteran felt “stable.” He denied suicidal or homicidal ideations. The evaluator observed the Veteran was alert and oriented. His appearance was appropriate, and his behavior was cooperative. His affect was congruent with this mood, which was calm. His speech was normal in rate and rhythm. His thought processes were organized and without impairment. He did not report delusions or hallucinations. His insight and judgment were good. 

The Board finds that the Veteran is competent to report his feelings, symptoms, sensations, and experiences as they were recorded within the VA note. The Board also finds the Veteran’s statements credible and probative as to the severity, frequency, and duration Veteran’s depressive disorder. As to the evaluator’s respective observations and impressions of the Veteran, absent evidence to the contrary, the Board finds the evaluator competent. See generally Cox, 20 Vet. App. at 569. The Board also finds the evaluator credible due to proper utilization of the DSM-5, and there is no evidence of bias or motivation to lie. The Board also finds the evaluator’s observations and impressions significantly probative of the Veteran’s depressive disorder as the evaluator relied on accurate facts, considered the Veteran’s medical history and lay statements, and the evaluation contains pertinent information to the Veteran’s disability picture.

The next relevant medical record is a January 2016 VA mental health note, documenting an evaluation of the Veteran. Because this medical record is more than a year after the initial rating decision in December 2014, the Board finds that this medical record is not relevant to determining whether the Veteran’s initial disability rating was appropriate. This medical record will be considered in the later analysis of whether stage ratings are appropriate in this case. 

The Board now turns the lay evidence of record relating to the Veteran’s initial disability rating. The Veteran filed his notice of disagreement in January 2015 asserting his depression led to occupational and social impairment. He stated, “I do not like to be around at work and at social events.” January 2015 VA Form 21-0958, Notice of Disagreement. Likewise, in his November 2015 VA Form 9, appeal to the Board, the Veteran asserted his depressive disorder affected his work and caused him to lose his job. In June 2016, he submitted correspondence indicating he had problems at work in the preceding three to four years before he was terminated. He stated it was because he did not want to take orders and had an attitude. At his Board hearing, the Veteran testified he lost his job at a roofing company in 2015, and that he was too aggressive, physically, and verbally. January 2019 Board Hearing. VA received a response from the Veteran’s employer in response to his TDIU claim in which his previous employer indicated the Veteran was terminated from employment for “safety violations.” June 2016 VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability.

The Board reasonably interprets the Veteran’s argument to be that his mood an irritability stemming from his depressive disorder consequently affected his employment. The Board finds the Veteran competent to report what he experienced and felt during his employment. As to credibility, the Board finds him credible with respect to his perceptions of why he was terminated. Yet, the Board also finds his former employer to be competent and credible to report what the actual basis for termination was. When weighing the competing statements, the Board notes that the Veteran reported to his November 2014 VA treating medical professional that he was “adapting to the new management and their increasing changes regarding employee safety.” During a May 2016 VA examination, the Veteran reported he was terminated for “falling asleep on the job.” In the Board’s view, these statements make it more likely than not that the Veteran’s prior employer did terminate the Veteran for safety violations, rather than his irritability or mood. The Board finds the employer’s stated reason to have more probative value than the Veteran’s perceived reasons. Jandreau, 492 F.3d at 1376 (“The Board retains discretion to make credibility determinations and otherwise weigh the evidence submitted . . . .”). The Board has not located additional lay evidence relevant to the Veteran’s initial disability rating for this appear period.

Considering the Veteran’s total disability picture for the period in and around August 2014 to December 2014, for the reasons that follow, the Board finds that the Veteran’s depressive disorder symptoms are most closely approximated by the assigned 50-percent initial disability rating based on their severity, frequency, and duration. 38 C.F.R. § 4.130, DC 9411; Vazquez-Claudio, 713 F.3d at 116‒17. 

50-perecent rating: Occupational and social impairment with reduced reliability and productivity

The Board finds the Veteran’s consistent statements about having a loss of interest in things that use to bring him pleasure and feeling down, depressed, or hopeless demonstrate that he generally had a flattened affect. While the evidence does not illustrate that the Veteran necessarily had “panic attacks,” he did consistently report to his treating mental health professionals from December 2013 through April 2014 that he experienced anxiety and/or panic less than half of the days per each month during that timeframe. In June 2014, he reported he was no longer feeling anxiety or panic. Likewise, the November 2014 VA examiner did not endorse that the Veteran experienced anxiety, nor did his treating mental health professionals in August 2014 or November 2014. Thus, the Board finds that prior to June 2014, the Veteran did experience panic or anxiety more than once per week, but no longer experienced such symptoms following June 2014 through December 2014. 

The Veteran did experience mild memory loss and impaired long- and short-term memory, as recorded by the November 2014 VA examiner. This finding is reinforced by the Veteran’s concentration issues, which were recorded by his treating mental health professionals since December 2013 through November 2014.  

The November 2014 VA examiner found the Veteran had disturbances in motivation and in mood. The Board finds the evidence of record supports this conclusion. The Veteran has consistently reported a lack of enjoyment in life and depression since December 2013. Although his depression regressed at some points, it was still an ongoing symptom that never fully resolved. The Veteran also reported irritability and racing thoughts at points, which are best captured as disturbances in his mood. 

The Veteran reported a decreased appetite at multiple periods. The Veteran also consistently reported sleep disturbances, which the November 2014 VA examiner classified as chronic sleep impairment, which contributed to his low energy and ongoing fatigue. The November 2014 VA examiner also found the Veteran displayed symptoms of suspiciousness. The 50-percent rating does not directly account for these symptoms. Nonetheless, the Board finds each symptom is adequately characterized as a disturbance in mood or motivation or a characteristic that reasonably leads to a disturbance in mood or motivation.  

The Veteran’s primary contention for seeking an increased initial disability rating is that his depressive disorder affected his work relationships. To the extent the Veteran asserts he had an “inability” to establish and maintain effective work or social relationships, the Board disagrees. The evidence indicates that the Veteran struggled to maintain his position at work because, according to him, he was too aggressive, irritable, and moody. Yet, his employer cited safety violations as his reason for termination. Regardless of the reason, the Board believes the Veteran did struggle at work. He maintained an up-and-down work relationship and he readily admitted in his January 2015 notice of disagreement that he did not like being around people at work or at social events. Nevertheless, the Board does not find the evidence illustrates that he had an “inability” to form work relationships. Rather, the evidence demonstrates he had “difficulty” maintaining his work relationships. Notably, he worked at the same employer for approximately 13 years. See Social Security Administration Work History Report. He only experienced difficulties in the preceding three to four years before his termination. See June 2016 VA Correspondence. The Veteran indicated he was trying to adapt to new management, which the Board finds contributed to his difficulty in maintaining his work relationships. This evidence reasonably indicates that the Veteran had the ability to form work relationships, but had difficulty maintaining them, not the inability to form them.

In addition, the evidence does not demonstrate that the Veteran has an inability to form or maintain social relationships. It is clear to the Board that the Veteran deeply cares for his family. He expressed fear about giving any of them hepatitis C, which caused him to become less intimate with his wife and had caused him to be very careful around other family members. This demonstrated logical thinking, clear judgment, and compassion. The evidence, however, did not illustrate that he is unable to establish or maintain social relationship with family. Rather, he experienced difficulty interacting with his family in certain situations, such as close contact. In addition, the Veteran indicated to his mental health professionals he had support from his family regarding his depressive disorder. He attended church and had “brothers” at church, although he did not call them “friends.” The evidence indicated that the Veteran could establish and maintain social and familial friendships, but his thoughtfulness and compassion for his friends and family may have kept him at a distance.

The Veteran reported to his January 2014 and March 2014 treating mental health professionals that he felt that he was moving or speaking slowly such that other noticed on “several days” out of the months. He did not report any such symptoms following March 2014. None of his treating mental health professionals nor the November 2014 VA examiner noted circumstantial, circumlocutory, or stereotyped speech. The Board finds the Veteran’s general disability picture indicates the Veteran did not have speech issues of severity, frequency, or duration contemplated by the 50-percent rating.

The November 2014 VA examiner found the Veteran was able to understand complex commands. There is no evidence in the record that contradicts this finding. The November 2014 VA examiner and each of the Veteran’s treating mental health professionals recorded no evidence of impaired judgment or abstract thinking.

70-percent rating: Occupational and social impairment, with deficiencies in most areas

There is a lack of evidence of suicidal ideations in and around August 2014 to December 2014. None of the Veteran’s treating mental health professionals nor the November 2014 VA examiner recorded that the Veteran had any such ideations. Although the Veteran reported to the November 2014 VA examiner that it felt like he was “just waiting to die,” this was not an ideation of suicide. The Board interprets this a characterization of how depressed he was and how he had no enjoyment in his life. He never suggested he was contemplating taking his own life. 

There was also an absence of evidence illustrating obsessional rituals that interfered with his routine activities, an absence of intermittently illogical, obscure, or irrelevant speech, and an absence of spatial disorientation. At each VA mental health appointment and at the November 2014 VA examination, the Veteran was noted to have adequate hygiene.

The evidence does not indicate that the Veteran experienced near-continuous panic attacks during the relevant appeal timeframe. As discussed, the Veteran did experience anxiety and panic for several days in some months, but those symptoms gradually decreased and became non-existent around June 2014. Nevertheless, his consistent statements and medical documentation did demonstrate that he experienced near-continuous depression. According to his VA mental health notes, his depression ranged from mild to moderately severe from December 2013 through June 2014 based on depression screening using the patient health questionnaire 9 (PHQ-9), and the results showed a progressive decrease of depression through the period. He continued to experience depression after June 2014, but the severity of his depression was not clear. Nevertheless, it was no less than mild.

For the reasons previously discussed, the Board finds the Veteran did not have an “inability” to establish and maintain effective relationships. Rather, he had “difficulty” establishing and maintain effective relationships. In connection with his work relationships, the Board also finds that the Veteran had difficulty adapting to stressful situations while at work. His statements and testimony generally indicated that he could not adapt to new management and safety regulations at his employment. He stated he had issues in the preceding three to four years prior to his termination, but he does not clarify what those issues were, which makes his statements only minimally probative. 

The Board does not find evidence that the Veteran had impaired impulse control. While the Veteran testified at his Board hearing that he was deemed too aggressive, physically and verbally, at work, there is no contextual information for the Board to evaluate his testimony. He did not describe any specific or general instances in relation to his claimed aggressiveness. The Board cannot afford any probative value to this testimony.

Conclusion

Considering the Veteran’s total disability picture, including the severity, frequency, and duration of his symptoms, while some of the Veteran’s depressive disorder symptoms are encompassed by the symptoms within the 70-percent rating, namely near-continuous depression and difficulty adapting to stressful circumstances, the Board finds that the Veteran’s depressive disorder symptoms are most closely approximated by the assigned 50-percent initial disability rating. Vazquez-Claudio, 713 F.3d at 116‒17. The Veteran’s depressive disorder symptoms demonstrated that the Veteran had occupation and social impairment with reduced reliability, as opposed to occupation and social impairment, with deficiencies in most areas, such as work, family relations, judgment, thinking, or mood. The preponderance of the evidence is against a finding that an initial rating in excess of 50 percent for depressive disorder is warranted. 38 C.F.R. § 4.130, DC 9434.

As the Board has found that the Veteran’s disability picture did not rise to the level of severity, frequency, or duration contemplated by the 70-percent rating, it follows that his disability picture did not rise to the level of severity, frequency, or duration contemplated by the 100-percent rating. At this point, it suffices to say that the Board has thoroughly reviewed the relevant evidence of record and concludes the evidence, as previously discussed, weighs against an initial 100-percent disability rating. The Veteran’s depressive disorder symptoms did not most closely approximate “total occupational and social impairment” in and around August 2014 to December 2014. Id.

Staged Ratings

Having determined the assignment of a 50-percent initial disability rating was proper, the Board now turns to the issue of whether staged ratings are appropriate in this case. Fenderson, 12 Vet. App. at 127. For the reasons that follow, the Board finds an increase in the Veteran’s disability rating for depressive disorder throughout his appeal is unwarranted. 

In cases where staged ratings are appropriate, it is necessary to consider all “the evidence of record from the time of the veteran’s application.” Id. When the Board references the “appeal period” during the following analyses, it is referring to the time in and around December 2014 through the present. The Board will still consider the evidence previously discussed with respect to the appeal period prior to December 2014 in its overall analysis, but the Board will not reanalyze that evidence in the analyses that follow.  

The Board begins by addressing the medical evidence of record. The Board notes that it has not located any relevant, medical documents related to the Veteran’s depressive disorder prior to January 2016.

A January 2016 VA mental health note indicated the Veteran appeared for psychotherapy due to depression with anxious distress. The Veteran explained that over the preceding six months or so he experienced increased anxiety and irritability around other people, especially in large groups. He typically kept to himself. The Veteran also said that he got angry over little things. He denied suicidal ideations. He lived with his wife, did not work, and denied exercise. He did not have difficulty falling asleep but said he woke up frequently throughout the night. The Veteran mentioned his medications were recently changed, but he had not noticed a difference yet. 

The examiner observed the Veteran was alert and attentive. His grooming was appropriate. His mood was euthymic. He speech was normal in rate, rhythm, and volume. His thought processes were coherent and directed. He had good memory for recent events and was oriented. He did not experience hallucinations. 

The Board finds that the Veteran is competent to report his feelings, symptoms, sensations, and experiences as they were recorded within the VA note. The Board also finds the Veteran’s statements credible and probative as to the severity, frequency, and duration Veteran’s depressive disorder. As to the evaluator’s observations and impressions of the Veteran, absent evidence to the contrary, the Board finds the evaluator was competent and credible. See generally Cox, 20 Vet. App. at 569; Buchanan, 451 F.3d at 1337. The Board also finds the evaluator’s observations and impressions significantly probative of the Veteran’s depressive disorder.

In May 2016, the Veteran appeared for a VA examination. The examiner reviewed the Veteran’s VA electronic folder, VA medical records, the November 2014 VA examination, civilian treatment records, and military service treatment records. The examiner documented the Veteran’s lay statements as to his social, medical, and occupational history. The Veteran reported he still lived with his wife and they were “good.” His mother-in-law had moved in due to a hip injury. He saw his daughter and grandson a few times a week. He took his grandson to the park, taught him how to ride a bike, and he described their relationship as “close.” The Veteran drove his wife to stores, did “normal things,” and was independent with daily activities. He said he was friendly with neighbors, but generally socialized with family. The Veteran had not worked since being terminated in May 2015, and he missed working. 

As to his mental status, the Veteran reported his depression was “pretty much the same” since his November 2014 VA examination. He stated that in January 2016, he sought help from his primary care physician for increased anxiety, which resulted in an increase in his sertraline medication and he was prescribed hydroxyzine. He continued to report a lack of motivation, depressed mood, poor sleep, feeling bad about himself, poor concentration, and restlessness. He denied suicidal ideations, hopelessness, and panic attacks. He reported some increased anxiety and irritability, which the examiner attributed to his transition to retirement and/or pain and limitation from his knee condition, which was “less likely to be related to his depression.”

The examiner recorded the Veteran’s symptoms, to include depressed mood, anxiety, chronic sleep impairment, mild memory loss, and disturbances of motivation and mood. The Veteran was competent to handle his financial affairs. He was “pleasant, cooperative, smiling, [and] in good spirits” during the examination. He demonstrated logical and goal-directed thought processes, but he had “some concentration difficulties and distraction interfere[d] with task completion.”

The examiner opined that the Veteran’s level of occupation and social impairment was best categorized as “occupation and social impairment with reduced reliability and productivity.” May 2016 VA Mental Disorders DBQ. 

Absent evidence to the contrary, the Board finds the May 2016 VA examiner was competent to provide her observations, impressions, and opinion as to the Veteran’s depressive disorder. Cox, 20 Vet. App. at 569. The Board also finds the examiner was credible as the evidence demonstrates proper utilization of the DSM-5 and did not demonstrate the examiner had bias or motivation to lie. Buchanan, 451 F.3d at 1337. The Board finds the examiner’s observations, impressions, and opinion significantly probative of the Veteran’s depressive disorder in and around May 2016 as the examination relied on accurate facts, considered the Veteran’s medical history and lay statements, and contained pertinent information to the Veteran’s disability picture. Moreover, the Board finds the Veteran competent to report his symptoms and experiences, and the Board finds his statements credible and probative. 

Following the examination, the Veteran appeared for a June 2016 VA mental health psychotherapy session. The Veteran reported that he continued to struggle with feeling down and depressed due to his hepatitis C diagnosis. He explained that he felt like it was a “death sentence” and that he worried about it. He struggled with anxiety, irritability, and poor sleep. The examiner observed the Veteran was alert and attentive. His grooming was appropriate. His mood was euthymic. He speech was normal in rate, rhythm, and volume. His thought processes were coherent and directed. He had good memory for recent events and was oriented. He did not experience hallucinations or suicidal ideations. 

In a July 2016 VA mental health team note, the Veteran reported that he continued to struggle with low energy and feeling down. He said that he felt like his sleep improved as a result of implementing the sleep hygiene strategies that he learned. The examiner observed the Veteran was alert and attentive. His grooming was appropriate. His mood was euthymic. He speech was normal in rate, rhythm, and volume. His thought processes were coherent and directed. He had good memory for recent events and was oriented. He did not experience hallucinations or suicidal ideations.

In a November 2017 VA mental health team note, the Veteran reported that he continued to feel depressed. He explained that he felt the primary source of his depression was his hepatitis C diagnosis. He explained that he felt he could not do things that he wanted to in his life, primarily with his family, because of his diagnosis. The examiner observed the Veteran was alert and attentive. His grooming was appropriate. His mood was euthymic. He speech was normal in rate, rhythm, and volume. His thought processes were coherent and directed. He had good memory for recent events and was oriented. He did not experience hallucinations or suicidal ideations.

In a March 2019 VA mental health team note, the Veteran reported feeling down and wished “he would not wake up.” He did not feel that way very often. The last time he had a similar feeling was in November or December of 2018. He denied ideations of suicide or plans for self-harm. He said his relationship with his wife kept him from wanting to do anything to hurt himself. He stated that he began to use cannabis 2-3 times a week. He denied any changes to his work or living situations. He appeared for two follow-up visits over the span of two weeks. At each time, he stated his mood was about the same. 

The June 2016, July 2016, November 2017, and March 2019 treating mental health professionals respectively observed the Veteran was alert and attentive. His grooming was appropriate. His mood was euthymic. He speech was normal in rate, rhythm, and volume. His thought processes were coherent and directed. He had good memory for recent events and was oriented. He did not experience hallucinations

As to the June 2016, July 2016, November 2017, and March 2019 VA mental health notes, the Board finds that the Veteran is competent to report his feelings, symptoms, sensations, and experiences as they were recorded within each respective VA note. The Board also finds the Veteran’s reports credible and probative as to the severity, frequency, and duration of his depressive disorder over the time period. As to the evaluators’ respective observations and impressions of the Veteran, absent evidence to the contrary, the Board finds each evaluator was competent. See generally Cox, 20 Vet. App. at 569. The Board also finds each evaluator was credible as there was no evidence of bias or motivation to lie. The Board also finds the evaluators’ respective observations and impressions significantly probative of the Veteran’s depressive disorder.

Finally, in December 2019, the Veteran presented for a VA-contracted examination as to his depressive disorder. The examiner reviewed the Veteran’s VA electronic folder, which contained his medical records. The examiner documented the Veteran’s lay statement as to his social, medical, and occupational history. The Veteran reported he lived with his wife, but that there was “tension” at home due to his depression symptoms. The Veteran had not worked since 2015. He continued to receive mental health treatment at the VA for depression. He continued to take medication. Since his retirement, he stayed at home, his attention span was short, he had no hobbies, his friends did not visit, he did not sleep well, he was easily angered, he does not “deal with people,” and when he started projects he never finished them. He said he had neglected his house, avoided crowds, and “over the last few years” had suicidal ideations. He said some days he did not get out of bed due to feeling depressed.

The examiner recorded the Veteran’s symptoms to include depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintain effective work and social relationships, difficulty in adapting to stressful circumstances, including work or worklike setting, and suicidal ideation. The Veteran was competent to handle his financial affairs. The examiner observed the Veteran was on time for his appointment and was appropriately dressed. His affect was restricted and depressed. His speech was slow, but otherwise normal in volume and rhythm. He maintained fair eye contact during the examination. There was no psychomotor agitation or retardation. His though processes were linear and goal-directed. 

The examiner opined that the Veteran’s level of occupation and social impairment was best categorized as “occupation and social impairment with reduced reliability and productivity.” December 2019 VA Mental Disorders Disability Benefits Questionnaire (DBQ). 

Absent evidence to the contrary, the Board finds the December 2019 VA-contracted examiner was competent to provide his observations, impressions, and opinion as to the Veteran’s depressive disorder. Cox, 20 Vet. App. at 569. The Board also finds the examiner was credible as the evidence demonstrates proper utilization of the DSM-5 and does not demonstrate the examiner had bias or motivation to lie. Buchanan, 451 F.3d at 1337. The Board finds the examiner’s observations, impressions, and opinion significantly probative of the Veteran’s depressive disorder in and around December 2019 as the examination relied on accurate facts, considered the Veteran’s medical history and lay statements, and contained pertinent information to the Veteran’s disability picture.

As to the relevant lay evidence, the Veteran testified at his Board hearing in January 2019 that he felt his depression had worsened because he had to have his medications increased. He testified about “flare-ups” with his wife. The Board finds no other lay evidence within the claims file of relevance to the Veteran’s depressive disorder symptoms from December 2014 forward not already discussed. 

50-perecent rating: Occupational and social impairment with reduced reliability and productivity

The Board finds the Veteran continued to report having a loss of interest in things that use to bring him pleasure, and feeling down and depressed, which generally demonstrates a continued flattened affect. Yet, he also reported spending time with his grandson and being independent with daily activities, which indicates his affect was positively impacted. The Board does not find the Veteran’s affect was any worse during the appeal period than at the time of his initial rating. 

The evidence does not illustrate that the Veteran experienced panic attacks after December 2014. He denied experiencing panic attacks during his May 2016 VA examination. The evidence does illustrate that he experienced, and continues to experience, increased anxiety, since January 2016. The May 2016 VA examiner and December 2019 VA-contracted examiner each noted anxiety as a symptom. His treating physician increased his medications to alleviate his anxiety. Notably, the May 2016 VA examiner attributed his increased anxiety (and irritability) to his then-existing knee condition, not his depression. Regardless, the evidence does not show that the Veteran’s anxiety is equivalent to a panic attack. The Board does not find that this symptom was any worse during the appeal period than at the time of his initial rating.

The Veteran continued to experience mild memory loss and concentration issues. The May 2016 VA examiner reported that the Veteran’s concentration issues interfered with his ability to complete tasks. None of his treating mental health professionals documented memory issues. The Board does not find that these symptoms were any worse during the appeal period than at the time of his initial rating.

The Veteran continued to experience disturbances in motivation and in mood. He reported at various times that he did not feel joy and that his diagnosis of hepatitis C decreased his quality of life. He continued to struggle with low energy and depression. He continued to report sleep disturbances, but they did not occur in the same frequency as they had in the past because the Veteran was receiving sleep counseling. He also consistently reported increased irritability, but without violent outbursts of physical violence. The Board does not find that these symptoms, except with respect to irritability, were any worse during the appeal period than at the time of his initial rating.

As to his work relationships, the Veteran had not worked since 2015, as previously discussed. Again, the evidence reasonably indicates that the Veteran had the ability to form work relationships, but had difficulty maintaining them, not the inability to form them. The Board does not find that this symptom was any worse during the appeal period than at the time of his initial rating.

As to his familial and social relationships, the Veteran reported in January 2016 that he kept to himself. In May 2016, his relationship with his wife was still good and that her mother had moved in with them. He did not report any problems. He spent time with his grandson. While he was friendly with the neighbors, he preferred to socialize with family generally. In November 2017, he felt that he wanted to do more with his family but could not due to his hepatitis C. In March 2019, he said his marriage was what kept him going. He denied any changes to his work or living situations at that time. In December 2019, however, the Veteran reported increased tension with his wife because of his depression. Although the Veteran and his wife had tension in 2019, there is no evidence about the severity or frequency of the tension by which to gauge how it affected his ability to form or maintain his family relationships. As to the Veteran’s friends, he routinely stated that he did not socialize outside of his family. So, the fact that his friends did not visit him around December 2019 is not a marked difference from his prior social relationships. The Board does not find that this symptom was any worse during the appeal period than at the time of his initial rating. To the extent that Veteran’s tension with his wife caused difficulty in their relationship, it was not of the severity that resulted in anything more than frustration based on the available evidence. 

The evidence does not demonstrate the Veteran had circumstantial, circumlocutory, or stereotyped speech. None of the Veteran’s mental health treatment professionals noted such issues. The December 2019 VA-contracted examiner did note the Veteran’s speech was “slow,” but was otherwise normal. Nor does the evidence demonstrate that the Veteran had an inability to understand or complex tasks, or that he had impaired judgement or impaired abstract thinking. The Board does not find that these symptoms were any worse during the appeal period than at the time of his initial rating.

70-percent rating: Occupational and social impairment, with deficiencies in most areas

There is an absence of evidence of obsessional rituals that interfered with the Veteran’s routine activities, experienced spatial disorientation, had inadequate hygiene or displayed inappropriate appearance, or had intermittently illogical, obscure, or irrelevant speech.

The Veteran did not experience near-continuous panic attacks. Nevertheless, his consistent statements and medical documentation does demonstrate that he experienced near-continuous depression, although the severity of the Veteran’s depression remains unclear. 

For the reasons previously discussed, the Board finds the Veteran did not have an “inability” to establish and maintain effective work and social relationships, but rather had “difficulty” establishing and maintaining such relationships. 

The Board does not find evidence that the Veteran had impaired impulse control. It is true that the Veteran consistently and credibly reported irritability, and he reported to his January 2016 VA mental health professional that he would get angry over little things. In the Board’s view, however, these characteristics do not equate with an inability to control his impulses. The evidence does not indicate that he became violent, abusive, out of control, or anything similar. While he appears to have been irritable frequently, the evidence does not indicate the severity of his irritability or that it manifested physically. The Board finds his irritability is best characterized as a disturbance in mood, which is part of the 50-percent rating.

The Board does find that the Veteran had difficulty adapting to stressful situations while at work. His statements and testimony generally indicated that he could not adapt to new management and safety regulations at his employment. 

Perhaps most significant is the Veteran’s statement of suicidal ideation to the December 2019 VA-contracted examiner “over the last few years.” Prior to that time, the Veteran denied thoughts of suicidal or homicidal ideations at every instance, as documented in his medical records. He did state to his March 2019 VA mental health professional that he wished “he would not wake up,” but also explicitly denied suicidal ideation. He also stated to his June 2016 treating mental health professional that he felt his hepatitis C diagnosis felt like a “death sentence,” but he denied suicidal ideation. 

The Board finds the absence of such evidence in his medical records weighs against finding that he had suicidal ideations over the “past few years.” See Buczynski v. Shinseki, 24 Vet. App. 221, 226‒27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist). The Board expects that the Veteran would report the truth to his treating mental health professionals as to whether he experienced suicidal ideations before December 2019. When so asked on multiple occasions, he denied suicidal ideations. The Board finds his statements made at the time he was asked about suicidal ideations by his treating mental health professionals are more credible, and thus probative, of his mental state at those times, rather than his statement in December 2019. See Fed. R. Evid. 803(4) (generally finding reliable statements for the purposes of medical diagnosis or treatment). See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (“[R]ecourse to the [Federal] Rules [of Evidence] is appropriate where they will assist in the articulation of the Board’s reasons.”). Therefore, the Board finds the Veteran’s suicidal ideations are captured by the 70-percent rating as of the time in and around December 2019. 

Conclusion

Considering the Veteran’s total disability picture, including the severity, frequency, and duration of his symptoms, while some of the Veteran’s depressive disorder symptoms are encompassed by the symptoms within the 70-percent rating, namely near-continuous depression, difficulty adapting to stressful circumstances, and suicidal ideation, the Board finds that the Veteran’s depressive disorder most closely approximates the 50-percent disability rating during the appeal period. Vazquez-Claudio, 713 F.3d at 116‒17. During the appeal period, the Board finds the Veteran has consistently displayed and endorsed symptoms of anxiety, depression, sleep impairment, irritability, disturbances of motivation and mood, mild memory loss, lack of concentration, and difficulty in establishing and maintaining effective work and social relationships. The Board finds that such symptomatology is consistent with occupational and social impairment with reduced reliability and productivity; the symptoms for a 50-percent disability rating. 38 C.F.R. § 4.130, DC 9434. Thus, staged ratings are not appropriate.

As the Board has found that the Veteran’s disability picture did not rise to the level of severity, frequency, or duration contemplated by the 70-percent rating, it follows that his disability picture did not rise to the level of severity, frequency, or duration contemplated by the 100-percent rating. At this point, it suffices to say that the Board has thoroughly reviewed the relevant evidence of record and concludes the evidence, as previously discussed, weighs against an initial 100-percent disability rating. The Veteran’s depressive disorder symptoms did not most closely approximate “total occupational and social impairment” throughout the appeal period. Id.

In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes his depressive disorder symptoms to be more severe than contemplated by his currently assigned 50-percent disability rating. The Board dispute that the Veteran’s depressive disorder causes him distress and impairment in social, occupational, or other important areas of his life. Nevertheless, the Board must assign a rating based on a cumulative review of the relevant medical and lay evidence of record, which, in this case, does not show a disability picture that more most closely approximates occupational and social impairment with deficiencies in most areas or total occupational and social impairment. 

In sum, the Veteran is not entitled to an increased initial disability rating in excess of 50 percent, nor is he entitled to staged ratings in excess of 50 percent during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434.

2. Entitlement to referral to the Director of Compensation for a total disability rating based on individual unemployability (TDIU) on an extraschedular basis under 38 C.F.R. § 4.16(b) for the appeal period prior to October 24, 2016

3. Entitlement to a total disability rating based on individual unemployability (TDIU) on a schedular basis under 38 C.F.R. § 4.16(a) for the appeal period on and after October 24, 2016

TDIU

When entitlement to total disability evaluation based on individual unemployability (TDIU) is raised during the adjudicatory process of the underlying disability or during the administrative appeal of the initial rating assigned for that disability, it is “part and parcel” of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453‒55 (2009). Consequently, a separate formal claim for TDIU is unnecessary in the context of an appeal from an initial rating. Id. at 454; Comer v. Peake, 552 F.3d 1362, 1367 (Fed. Cir. 2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating).

Because the Veteran is challenging the initial disability rating assigned for his service-connected depressive disorder upon which he based his assertion of unemployability, the determination of whether he is entitled to TDIU is part and parcel of the determination of the initial rating for his depressive disorder. Rice, 22 Vet. App. at 454‒55. The Veteran also filed a claim for TDIU in June 2016.

For a veteran who does not qualify for a schedular 100-percent rating, as in this case, according to 38 C.F.R. § 4.16(a), the veteran is entitled to TDIU if the veteran is unable to secure and follow “substantially gainful employment” by reason of his or her service-connected disabilities, and:

(1.)	The veteran has one service-connected disability rated at 60 percent or more; or

(2.)	The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. 

See also 38 C.F.R. § 4.25 (combined ratings table). 

If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities. 38 C.F.R. § 4.16(a). “Substantially gainful employment” includes an economic component; that is, a veteran’s ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray v. Wilkie, 38 Vet. App. 58, 72 (2019); 38 C.F.R. § 4.16(a). It also includes a non-economic component; that is, whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 38 Vet. App. at 73. When determining whether a veteran can “secure and follow substantially gainful employment,” the Board, as appropriate, should consider:

(1.)	The veteran’s history, education, skill, and training;

(2.)	Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

(3.)	Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Id. (citations omitted). The Board is precluded from considering the Veteran’s age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286. 

The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Ray, 38 Vet. App. at 72, 75‒76.

A veteran who does not meet the schedular requirements under 38 C.F.R. § 4.16(a) may still be considered for extraschedular TDIU under section 4.16(b). Extraschedular TDIU does not have any rating requirements. When a “rating board” determines that a veteran is unemployable due to his or her service-connected disabilities but the veteran fails to meet the rating criteria listed in 38 C.F.R. § 4.16(a), the rating board is required to refer the matter to the Director of Compensation for extraschedular consideration of TDIU. 38 C.F.R. § 4.16(b). The “rating board” includes the Board of Veterans’ Appeals. Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (citation omitted). “[T]he initial extraschedular referral decision under [section] 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities.” Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); see Wages, Vet. App. at 236. Whether “the evidence nevertheless shows that a veteran is [unable to secure and follow a substantially gainful occupation] by reason of his or her service-connected disabilities” is the question to answer in the adjudication stage of assigning an extraschedular disability rating. Ray, 31 Vet. App. at 66.

Analysis

Schedular and Extraschedular criteria

The Veteran is currently service connected for the following disabilities with their associated ratings and effective dates: 

•	Hepatitis C (20% from 01/10/2011)

•	Hypertension (10% from 09/09/2013)

•	Depressive disorder (50% from 8/20/2014)

•	Scars associated with cheilosis (20% from 10/24/2016)

•	Cheilosis with scars (10% from 10/24/2016)

The Veteran does not have a service-connected disability rated at 60 percent or more. The Veteran’s combined evaluation for compensation is 70 percent as of October 24, 2016, but no sooner, and he is service connected for depressive disorder, rated at 50% as of that date. Therefore, the Veteran meets the schedular requirements of 38 C.F.R. § 4.16(a) as of October 24, 2016, but no sooner.

Because the Veteran’s claim for an increased initial disability rating reasonably raises a claim for TDIU for the entire appeal period, the Board is still required to determine whether extraschedular referral for the time period prior to October 24, 2016 is warranted. Here, the Board’s extraschedular analysis is limited to merely granting or denying the referral for TDIU on an extraschedular basis under section 4.16(b) based on a “reasonable possibility” analysis for the period prior to October 24, 2016. Ray, 31 Vet. App. at 66; Anderson v. Shinseki, 22 Vet. App. 423, 428‒29 (2009). 

Substantially gainful employment

According to his November 2014 VA examination, the Veteran reported he did not work prior to joining the military. He completed the 11th grade. He denied formal learning disorders, special education, or behavior problems in the school setting. Following his military service, he obtained his G.E.D. and took welding classes at a junior college. He completed many different jobs. According to his Social Security Administration (SSA) records, he listed the following previous employment: (1) Dry-end Operator for a roofing company (November 2002 – Mary 2015); (2) Laborer/Supervisor for a roofing manufacturer (March 2000 – December 2002); (3) Lube-tech at Jiffy Lube (2000). In his June 2016 VA Form 21-8940, application for TDIU, the Veteran listed that he obtained a building maintenance certificate in 1997. 

For the period prior to October 24, 2016, the Veteran was employed at a roofing company as a dry-end operator. As part of his job duties, he moved fiberglass rolls into place and drove a forklift. See SSA Work History Report. He worked eight hours per day, five to seven days a week. He was paid $21.00 per hour, and the highest monthly earnings he made was $5000.00. See SSA Work History Report; June 2016 VA Form 21-8940. He indicated that he used machines, tools, his technical knowledge/skills, and completed reports as part of his position. See SSA Work History Report. He lifted 70 to 80 lbs. at the heaviest, and on average, he lifted 45 to 50 lbs. 

The Board finds the Veteran competent to report his past educational, training, and work-related experiences. The Board finds no evidence within the record contradicts his statements and the Board has no other reason to disbelieve him. Thus, the Board finds his statements credible and probative. 

As previously discussed, the Board finds the Veteran was terminated from his job in May 2015, not due to his mental health disability or another service-connected disability, but because of safety violations. In his June 2016 VA Form 21-8940, application for TDIU, the Veteran was asked, “Did you leave your last job because of your disability?” and he checked both the “yes” and “no” boxes. The form explained that if the veteran checked “yes,” then he should give a statement of facts. The Veteran chose to not provide a factual basis for his answer. As such, the Board finds that based on the credible and probative evidence of record, which the Board has previously analyzed during the discussion of the Veteran’s increased rating claim, the Veteran did not leave his place of employment due to his service-connected disabilities. This is not to say that the Veteran’s personal feelings toward his work are disingenuous. The Board does believe that he avoids work and large crowds, and that he does have difficulty getting along with others because of his attitude and/or mood.

The Board notes that the Veteran also suffers from several nonservice-connected conditions, including the following: a right knee condition, to include surgery and arthritis, chronic obstructive pulmonary disease (COPD), erectile dysfunction, and cirrhosis of the liver.

The Board reviewed the Veteran’s SSA disability application and associated documents, including a medical examination of the Veteran and the SSA’s findings. While SSA determinations are not binding on the Board, they are relevant, and the records relied upon to make SSA determinations are probative evidence, specifically in consideration of the Veteran’s claim for TDIU. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on VA). 

The Veteran claimed social security disability compensation based on knee arthritis, hepatitis C, high blood pressure, and mental health issues, and he asserted he had an inability to function and/or work as of May 13, 2015. He reported that he suffered a work-related injury in December 2013 to his right knee. He indicated he had difficulty with lifting, walking, standing, and quick movement — and his VA medical records reflect such injury. 

SSA obtained a medical opinion from a physician in April 2015 who conducted a review of the available medical records and an in-person examination of the Veteran. The physician opined that the Veteran’s knee condition did not prevent him from being able to work. See SSA Medical Opinion of Dr. CP. Notably, the physician did not address any other disabilities identified by the Veteran in his SSA claim. On review, the SSA found the Veteran was capable of “sedentary” work based on his knee injury, but that he was still disabled under the law of SSA. To note, SSA defines “sedentary” work as work that involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. § 404.1567. The SSA did not make any determination on the Veteran’s claim for disability as to his mental health issues or any other listed disability. 

Since August 2014, the Veteran has undergone three VA examinations, in 2014, 2016, and 2019, which the Board has previously deemed competent, credible, and probative. All three VA examiners found that the Veteran’s depressive disorder produced “occupational and social impairment with reduced reliability and productivity.” In an addendum, the May 2016 VA examiner recognized that Veteran’s depressive disorder mildly impaired his ability to retain instructions or sustain attention in simple tasks, which could contribute to moderate impairment in sustaining concentration on complex tasks. As such, his depressive disorder could contribute to mild impairment in the ability to respond appropriately to coworkers, supervisors, or the general public, and to changes in the work setting. Nevertheless, she opined that 

[t]here is no evidence of more serious symptoms that would preclude employment, such as delusions, hallucinations or an inability to get along with others. He does not have a recent history of violence or psychiatric hospitalizations associated with his [service-connected] condition. He is currently retired and fired from his last job in May 2015 for “safety violations”; there is no evidence in his claims file that his termination is related to his [service-connected] mental health condition. 

 . . . . It is recommended that he seek employment in a setting that minimizes situations that involve travel and working in large crowds.

. . . . The [V]eteran’s [service-connected] mental disorder does not impair the ability to understand and follow instructions. 

May 2016 VA Medical Opinion Addendum. 

This addendum is highly probative of the Veteran’s ability to obtain substantially gainful employment. The examiner was thorough in her opinion and rationale. She did not state that the Veteran could not work, but rather that he would be more suited for a position that “minimized” travel and large crowds. Furthermore, she opined that he did not have an “inability” to get along with others, only that he might have a “mild impairment” in the ability to respond to coworkers, supervisors, or the public, or adapt in a work setting. The Board does not find that a “mild impairment” in his ability to respond to others makes the Veteran “unemployable.” 

Notably, he stated that in his last position his depressive disorder symptoms caused him to be disciplined at work and his position was changed to where he was isolated from certain people; however, he was still employable. See August VA 2014 Mental Health Team Note. After his termination in May 2015 for safety violations, he stated to the May 2016 examiner that he missed work and that at he was spending time “looking for a job.”

He also underwent a May 2016 VA examination in relation to his high blood pressure (hypertension). The examiner found that his service-connected hypertension did not affect his ability to work. The Board finds the examiner competent and credible, and the opinion probative as to Veteran’s employability. Cox, 20 Vet. App. at 569; Buchanan, 451 F.3d at 1337. Significantly, the Veteran worked at the roofing company prior to and after service connection was granted for this disability. The Board finds that the Veteran’s hypertension does not prevent his employability; he readily demonstrated his ability to work with the disability.

The Veteran also presented for an October 2016 VA-contracted examination as to his cheilosis. The examiner opined that the only functional impact of the Veteran’s cheilosis on work was that he could not be exposed to prolonged sunlight or prolonged dryness. The Board finds that examiner competent and credible, and the opinion probative as to Veteran’s employability. Cox, 20 Vet. App. at 569; Buchanan, 451 F.3d at 1337. The Board recognizes that the Veteran may not be able to do roofing or work outside for prolonged periods, but there is no indication that his unable to work outside at all or in a warehouse, office building, or any other indoor position. In addition, he has provided no evidence or argument that “dryness” has ever affected his employment activities, and the Board cannot reasonably conceive of any based on the evidence available within the record. Again, significantly, he worked at the roofing company prior to and after service connection was granted for this disability. The Board finds that the Veteran’s cheilosis does not prevent his employability; he readily demonstrated his ability to work with the disability.

The Veteran also had a VA-contracted examination in September 2016 as to his hepatitis C. The examiner opined that “[d]ecisions about the [V]eteran’s return to work may depend on the amount of contact he has with the public and the chances of blood-to-blood contact. If required to perform strenuous tasks he may need to limit his job-related activities after returning to work. Company policy on medication usage should be reviewed to determine if medication use is compatible with job safety and function.” The Board finds that examiner competent and credible, and the opinion probative as to Veteran’s employability. Cox, 20 Vet. App. at 569; Buchanan, 451 F.3d at 1337. Pointedly, the examiner did not opine that the Veteran’s hepatitis prevented him from working, only that decisions about work should take into consideration public contact, blood-to-blood contact, strenuous tasks, and company policy on medication usage in connection with job safety and functions. The Veteran has never argued, nor does the evidence demonstrate or suggest, that the Veteran’s past employment involved public contact or blood-to-blood contact. Notably, the Veteran continued to work at the roofing company prior to and after service-connection was granted for his hepatitis C and did not experience any problems related to the disability, including strenuous activity. The Board finds that the Veteran’s hepatitis C does not prevent his employability; he readily demonstrated his ability to work with the disability. 

During his Board hearing, the Veteran asserted that part of the reasons for his termination from his employment were his sores on his mouth from cheilosis. January 2019 Board Hearing Testimony. The Board does not find this argument or factual assertion credible. Nowhere within the evidence of record does it indicate or even suggest that the Veteran was terminated due his facial soars/cheilosis. The Veteran never asserted such a theory as the basis for termination at any of his mental health meetings, during his VA examinations, or in any correspondence with VA or the Board. In fact, he explicitly contradicted this assertion by asserting he was fired for sleeping on the job. The Board has already explained why it believes the Veteran was terminated from his last employment, for safety violations. 

Conclusion

For the period prior to October 24, 2016, referral to the Director of Compensation for consideration of extraschedular TDIU is not warranted. 38 C.F.R. § 4.16(b). The evidence weighs heavily against finding a reasonable possibility that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to October 24, 2016. Ray, 31 Vet. App. at 66. 

For the period of October 24, 2016 to the present, the Board finds the evidence weighs heavily against finding the Veteran’s service-connected disabilities make him unable to secure and follow a substantially gainful occupation. 38 C.F.R. § 4.16(a).

The Board finds the credible and probative evidence of record establishes the Veteran had the necessary skills, eduction, and experience to obtain substantially gainful occupation regardless of his service-connected disabilities. He worked with his service-connected hepatitis C, cheilosis and associated scars, hypertension, and depressive disorder until May 2015, earning more than a marginal income. At no time prior to or after October 24, 2016, did the Veteran’s hepatitis C, cheilosis and associated scars, or hypertension impact his employability, which is demonstrated by his continued employment with these disabilities at his prior place of work. To the extent his depressive order symptomatology influenced his ability to work, it was not of such severity that it made him unemployable prior to or after October 24, 2016. Respectively, three examiners credibly opined that the Veteran’s depressive disorder was best characterized in 2014, 2016, and 2019 as demonstrating occupational and social impairment with reduced reliability and productivity. 

This evidence does not demonstrate that the Veteran’s service-connected disabilities prevented the demands of reasonable types of labor, including sedentary (as defined by SSA), indoor, or those that involve limited personal contact, such as maintenance, welding, or desk work, prior to or after October 24, 2016. Nor is there evidence that the Veteran’s service-connected disabilities would deter all employers from employing him at a respectable income given his experience and knowledge of the roofing industry for over a decade, his building maintenance certificate, his G.E.D., and general knowledge of welding.

Thus, a TDIU extraschedular referral is not warranted prior to October 24, 2016, 38 C.F.R. § 4.16(b), and TDIU is not warranted on or after October 24, 2016, 38 C.F.R. § 4.16(a). 

 

M. Tenner

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	J. F. Sawka, 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.