Citation Nr: 21001186 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-04 537 DATE: January 7, 2021 ORDER Entitlement to an initial disability rating in excess of 70 percent for major depressive disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) since March 15, 2012 is granted. Entitlement to a TDIU prior to March 15, 2012 is denied. FINDINGS OF FACT 1. The Veteran’s major depressive disorder most closely approximates 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/or inability to establish and maintain effective relationships. 2. Since March 15, 2012, the evidence of record is at least in equipoise that the Veteran's service-connected major depressive disorder prevented him from obtaining or maintaining substantial gainful employment. 3. Prior to March 15, 2012, the evidence of record does not show that the Veteran’s service-connected disabilities prevented him from obtaining or maintaining substantial gainful employment, as his full-time employment was more than marginal and was not in a sheltered or protected environment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 70 percent for major depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.125, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to TDIU, since March 15, 2012 have been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. 3. The criteria for entitlement to TDIU prior to March 15, 2012 have not been met. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army on active duty from January 1973 to March 1974. The issues come before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2020. A transcript of the hearing has been included with the record. Factual Analysis The medical evidence of record demonstrates the Veteran has been treated for major depressive disorder throughout the period on appeal. The Veteran’s VA psychiatry treatment note from June 2012 reported the Veteran’s depressed mood. The Veteran noted losing his job. The Veteran reported being in a daze all day long and that his supervisor told the Veteran he was “only going through the motions.” The Veteran’s December 2012 VA treatment record noted the Veteran’s bouts of depression with particular trouble with sleep maintenance. The Veteran reported increased anxiety, but denied anger and irritability. The Veteran expressed memory problems and difficulty with concentration. The Veteran noted that he enrolled in basic computer skills classes. He stated that he had taken one but could not keep up with the flow of the class. The June 2013 VA treatment note reported the Veteran exhibited a loss of interest in activities. The Veteran rated his depression as 8 out of 10 on most days. The Veteran reported increased aggravation and irritability towards friends and family. He noted his plans to move out into the country away from everyone. The Veteran underwent a VA mental disorders examination in November 2012. The VA examiner provided the diagnosis of recurrent/chronic major depressive disorder, categorized by depressed mood, loss of interest, weight gain, sleep disorder, fatigue, and an inability to think and concentrate. The examiner also diagnosed the Veteran with psychosocial and environmental problems. The examiner noted the Veteran was unemployed with problems finding work. The examination noted the Veteran reported memory and concentration problems. The examination reported the Veteran was married and divorced twice. The Veteran reported a relationship with his son but noted he did not have contact with his son until he was 21 years old. The examination noted the Veteran lived with his nephew. The examiner noted the Veteran was rather isolated and has little positive social interaction. The examination noted the Veteran had occupational and social impairment with reduced reliability and productivity. The examination noted the Veteran was close to no one. He lived with his nephew, but the Veteran reported they do not like each other. The Veteran reported that he helped keep the house clean and washed dishes, but otherwise stayed in his room. The examiner noted the Veteran usually took care of his bills in person but he had mild problems paying bills on time. The VA examiner noted the Veteran’s symptoms as depressed mood; anxiety; suspiciousness; chronic sleep impairment; impairment of short- and long term memory; disturbances of motivation and mood; difficulty in adapting to stressful circumstances, including work or worklike setting; inability to establish and maintain effective relationships; impaired impulse control, such as unprovoked irritability with periods of violence; and spatial disorientation. During the November 2012 VA examination the Veteran reported that he graduated college, but his concentration and memory were so bad that he had forgotten everything that he learned. The Veteran stated he could not remember or think. He noted he could no longer keep a steady job. The Veteran stated his supervisor told him he was slow and could not learn. The record contains a private examination performed by a private psychologist in April 2013. The Veteran reported having a low mood, poor tolerance for stress, and a tendency to want to keep to himself. The examination noted the Veteran presented with nervousness, physical tension, and difficulty sleeping. The Veteran noted he was easily stressed, and his mind goes blank. The Veteran stated he was confused easily, and he had trouble remembering instructions. The Veteran noted he did his own grocery shopping, cooked, did his own laundry, and cleaned his residence. He stated he would drive to visit friends and his niece, who lived almost 20 miles away. The private psychologist confirmed the Veteran’s diagnosis of major depressive disorder and provided the Veteran’s symptoms supported a diagnosis of a pain disorder associated with both psychological factors and a general medical condition. In February 2014, the Veteran underwent another VA examination. The VA examiner confirmed the Veteran’s diagnosis of major depressive disorder. The VA examiner noted the Veteran’s depressive disorder created occupational and social impairment due to mild or transient symptoms, controlled by medication, which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress. The VA examination provided the Veteran’s symptoms manifested as depressed mood; chronic sleep impairment; and disturbances of motivation and mood. During the clinical interview, the examiner observed the Veteran wore appropriate attire and exhibited good grooming. The examiner noted the increased quantity to the Veteran’s speech, but reported his speech was spontaneous, with a normal rate, volume, and quality. The Veteran displayed goal-directed thought process with circumstantiality. The examiner noted there was no evidence of mania or psychosis, and the Veteran denied suicidal ideation and homicidal ideation. The examination noted the Veteran earned an associate degree in electronics technology and an electronics technician license in the early 1990s. The Veteran stated that he never worked as an electronic technician, noting the constant changing nature of the electronics field as a reason he never worked in electronics technology. The Veteran worked as an industrial and commercial painter from the 1980s until approximately 2007. The Veteran reported his last job was in October 2012 as a laborer performing work described as “busting cement with hammers.” The Veteran reported that he was unable to work due to back pain and feelings of shortness of breath after working for 5 mins. The VA examiner concluded that the Veteran was not unemployable due to his mental health, noting the Veteran claimed to be let go from his previous positions due to reduction in force. The Veteran submitted a psychiatric impairment questionnaire, completed by the Veteran’s treating VA nurse practitioner in March 2015. The VA nurse practitioner noted that she treated the Veteran for major depressive disorder 3 to 4 times a week since September 2009. The VA nurse practitioner identified the Veteran’s symptoms as memory loss for names of close relatives, own occupation, or own name; intermittent inability to perform activities of daily living, deficiencies in family relations; deficiencies in mood; difficulty in adapting to stressful circumstances; deficiencies in work or school, unprovoked hostility and irritability; gross impairment in thought processes or communication; inability to establish and maintain effective relationships; depression affecting the ability to function independently, appropriately, and effectively; and neglect of personal appearance and hygiene. The VA nurse practitioner provided that the Veteran’s major depressive disorder effectively precluded the Veteran from performing occupational activities in a meaningful manner. Notably, the examiner indicated on the questionnaire that the Veteran’s psychological disorder markedly limited the Veteran’s ability to remember locations and work-like procedures; the ability to maintain attention and concentration for extended periods; the ability to interact appropriately with the general public; the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes; the ability to respond appropriately to changes in the work setting; the ability to accept instructions and respond appropriately to criticism from supervisors; and the ability to complete a normal work week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. The VA nurse practitioner concluded that the Veteran would not be capable of performing gainful employment with the symptoms and limitations stemming from his depressive disorder. The record contains a private psychological evaluation from July 2019. The private examiner noted the Veteran was unable to keep a steady job due to his anger and frequent physical outbursts. The examiner noted the Veteran experienced one attempted suicide shortly after separation. The examiner noted the Veteran’s history of treatment for depression and opined that the Veteran’s treatment reflected his resistance to medication. Upon examination, the private psychologist noted the Veteran appeared clearly depressed, and his face and posture reflected his verbal responses. The examination noted the Veteran had no permanent home and resided alone. The Veteran reported spending his days at home working in his garden in a solitary manner. The Veteran’s appearance was noted as casual dress with adequate personal hygiene. During the clinical interview, the Veteran spoke spontaneously and clearly, but lost concentration from time to time. The private examiner noted the Veteran’s memory appeared within normal limits, with no evidence of psychotic thinking, delusions, or hallucinations. The examiner described the Veteran as significantly depressed. The examiner noted the Veteran’s feelings of despair, with little hope for his future, though he denied homicidal and suicidal thoughts. The Veteran’s attention and concentration were impaired, and his counting and calculations were slow. The examiner reported the Veteran suffered from sleep impairment, a low level of productive activity, and anxiety. The examination noted the Veteran’s social isolation and stated the Veteran’s aggressive behavior and lack of friendships were evidence of his social impairment. The private psychologist provided the medical opinion that the Veteran’s depressive disorder severely affected his ability to function throughout the period of appeal. The examiner noted the Veteran demonstrated gross impairment in his mood, cognitive difficulties, to include concentration and attention, and concluded that the Veteran was unable to function in any occupational setting. The examiner stated that these psychological problems rendered the Veteran totally disabled from a psychiatric perspective. The private examiner opined that the Veteran cannot participate in any structured activity requiring attention and concentration for more than half of an eight-hour workday due to his anxiety and depression. Moreover, the examiner stated the Veteran’s anxiety, anger, and frequent outbursts precluded the Veteran’s regular interaction with co-workers, resulting in regular absences from work. The Veteran submitted a lay statement from his son’s former wife, written in May 2019. The lay statement noted that the Veteran had recently connected with his son and had planned to spend more time together, prior to the death of his son. In the January 2020 Board hearing, the Veteran testified that he continued to suffer from memory impairment. The Veteran noted forgetting directions to places that he had frequently been before. The Veteran noted he cannot remember where he puts things about 75 percent of the time. The Veteran reported sleep problems, which made him groggy and inactive. The Veteran testified that he no longer visited with people or participated in things he enjoyed in the past. He stated that he stayed away from people because of potential arguments. The Veteran testified that he had physical altercations with his nephew around once a month, prior to his nephew’s death. The Veteran noted he maintained a relationship with one friend, whom he saw once a month when available. The Veteran reported a sense of depression, noting he felt as though he was close to the end of his years. The Veteran also reported thoughts of suicide. The Veteran noted suffering from crying spells and nervousness. The Veteran noted that he no longer received mental health treatment. He felt like treatment made matters worse. The Veteran testified that he tried to take a computer class in the past, and that he cannot remember how to use the computer correctly. He noted that he had a problem with technology, stating that he could hardly use his cell phone. The Veteran testified that he had problems remembering while on the job. He noted going to a job and not remembering how to get back to the worksite. When taught how to do new painting techniques, the Veteran stated he could never grasp instructions. The Veteran noted he would likely have problems with coworkers due to frustrations brought on by his inability to take direction. The Veteran expressed problems with motivation in terms of going to work on a regular basis, though he thought he had a few more years left. 1. Entitlement to an initial disability rating in excess of 70 percent for major depressive disorder The Veteran contends the symptoms of his major depressive disorder warrant a higher evaluation, currently rated as 70 percent disabling. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. Id. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s depressive disorder is currently rated at 70 percent under DC 9411 of the General Rating Formula for Mental Disorders (General Rating Formula). 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula, 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/or inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and/or memory loss for names of close relatives, own occupation, or own name). Id. When determining the appropriate disability evaluation to assign for a mental disorder, the Board must make a finding as to how psychological symptoms impact a veteran’s occupational and social impairment. Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The General Rating Formula criteria are associated with objectively observable symptomatology. The plain language of the regulation makes it clear that the veteran’s impairment must be “due to” those symptoms. Thus, a Veteran may only qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio, 713 F.3d at 118. After a review of the medical and lay evidence of record, the Board finds the Veteran’s major depressive disorder has not manifested, at any time during the claim period, to the level of total occupational and social impairment required for a 100 percent disability rating under the General Rating formula. 38 C.F.R. § 4.130, DC 9411. While the Board recognizes the evidence of record establishes the Veteran’s total occupational impairment, the lay and medical evidence of record does not demonstrate the severity of the Veteran’s social impairment rose to the level of totally disabling. As indicated above, the private April 2013 examination reported that the Veteran would drive to visit friends and family. Further, the lay statement from May 2019 showed the Veteran had reconnected and maintained a relationship with his son. The Veteran expressed interest in spending more time together prior to the death of his son. Additionally, the Veteran noted in the January 2020 Board hearing he visited regularly with one friend. The record shows that the Veteran has been consistently found to be properly oriented appropriately groomed and attired, and able to perform activities of daily living. The Veteran noted in the November 2012 VA examination and the private April 2013 examination, that he did his own grocery shopping, cooks, and cleans. The Veteran’s psychological disability has manifested as thoughts of suicide and severe depression; however, the Veteran’s symptoms have not raised to the level of persistent danger of hurting himself or others. Rather, the Veteran continuously denied suicidal ideation during his regular VA psychological treatment sessions, and the medical evidence of record shows the Veteran has not acted on his suicidal thoughts during the period on appeal. Although the Board acknowledges the Veteran’s isolation and the symptoms of social impairment found throughout the record, the preponderance of the evidence does not support a determination that the Veteran’s depressive disorder manifested as total social impairment. Accordingly, the Board finds that probative evidence of record is against a disability rating in excess of 70 percent. In reaching this conclusion, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against a rating in excess of that currently assigned, the doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). 2. Entitlement to TDIU since March 15, 2012. 3. Entitlement to TDIU prior to March 15, 2012. The Veteran contends that the nature and severity of his psychiatric symptomatology has precluded substantially gainful employment, and that he is entitled to TDIU. TDIU may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability rated at 60 percent or more; or as a result of two or more service connected disabilities, provided at least one disability is rated at 40 percent or more, and there are additional service connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at whether a TDIU rating is warranted, but, the veteran’s age or the impairment caused by nonservice-connected disabilities may not be considered in such a determination. 38 C.F.R. §§ 3.321(b), 3.340, 3.341, 4.16(b), 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. at 363 (1993). When a veteran files a claim for an increased rating, the veteran is presumed to be seeking the maximum benefit under any applicable theory, to include the entire period on appeal for a claim of TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447 453-54 (2009). The Veteran already meets the necessary schedular rating criteria under 38 C.F.R. § 4.16(a), as the Veteran has a 70 percent rating for his service-connected major depressive disorder, 10 percent rating for tinnitus, and a noncompensable rating for bilateral hearing loss. Therefore, the issue of entitlement to TDIU turns on whether the Veteran’s service-connected disabilities impair him from securing substantially gainful employment. Here, the evidence of record is at least in equipoise that the Veteran’s major depressive disorder has barred the Veteran from securing and maintaining gainful employment. As discussed above, the record establishes significant occupational limitations due to the Veteran’s service-connected mental health disability. The Veteran asserted in his February 2013 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, he last worked full-time on March 15, 2012. He reported that he had an Associate’s degree in electronic technology and that his work history consisted of being a laborer and painter. The Board finds the medical opinion offered in the Veteran’s July 2019 private examination to be highly probative evidence that the Veteran’s service-connected major depressive disorder, prevented him from being able to maintain any gainful employment throughout the period on appeal since March 15, 2012. The Veteran’s private examiner noted the Veteran’s depressive disorder affected the Veteran’s ability to function in any occupational setting. The private psychologist opined that the Veteran’s psychological problems persisted and continued to render him totally disabled. The examiner also stated that the Veteran’s social impairment, to include anxiety, anger, and frequent outbursts, precluded the Veteran from any regular day-to-day interactions with co-workers. The Board acknowledges that the VA examiners came to different medical opinions regarding the Veteran's occupational limitations. However, although a medical opinion is probative, it is not dispositive. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The adjudicator is charged with interpreting the competent and credible evidence of record as a whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (2009); 38 C.F.R. § 4.2. Thus, the Board finds the evidence to be at least in equipoise that the Veteran’s major depressive disorder manifested as symptoms resulting in the Veteran’s total occupational impairment since March 15, 2012. Regarding the period prior to March 15, 2012, the Veteran was employed full-time as a laborer and industrial painter. However, there is no evidence that the Veteran’s employment was marginal or that he worked in a protected and sheltered environment. See February 2013 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Therefore, the evidence does not show that the Veteran’s service-connected major depressive disorder prevented him from maintaining or obtaining gainful employment prior to March 15, 2012. Considering the effect of the Veteran’s service-connected psychological disability with the Veteran’s education and occupational background, resolving all reasonable doubt in favor of the Veteran, entitlement to a TDIU is warranted as of March 15, 2012. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A.V. Bona, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.