Citation Nr: 21001187 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 17-55 190 DATE: January 7, 2021 ORDER For the entire period on appeal, an initial rating of 70 percent, but no higher, for major depressive disorder (MDD) is granted, subject to the laws and regulations governing payment of monetary benefits. For the entire period on appeal, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's MDD symptoms most nearly approximated occupational and social impairment with deficiencies in most areas, but the evidence did not more nearly approximate total social and occupational impairment. 2. For the entire period on appeal, the Veteran's service-connected disabilities have rendered him unable to obtain and maintain substantially gainful employment consistent with his educational and occupational background CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a rating of 70 percent, but no higher, for MDD, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434 (2019). 2. For the entire period on appeal, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant in this case, served in the on active duty from August 1987 to December 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2015 decision of a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, the Board notes that service connection for MDD was granted in a June 2014 rating decision, which assigned an initial rating of 30 percent, effective January 1, 2013. Later that same month, the Veteran submitted a claim seeking “reconsideration on the evaluation for depression.” Thus, the June 2014 rating decision did not become final. In a September 2014 rating decision, the RO granted a 50 percent rating for MDD, effective January 1, 2013. In November 2014, the Veteran again submitted a claim seeking “reconsideration of evaluation for major depression.” Thus, the September 2014 rating decision did not become final. In the January 2015 rating decision on appeal, the RO continued the 50 percent rating for MDD. Based on this procedural history, the Board finds that the issue on appeal is entitlement to an initial rating in excess of 50 percent for MDD and has recharacterized the issue to reflect the correct procedural posture. The Veteran testified at a March 2020 Board videoconference hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In a September 2020 letter, the Veteran was informed that the VLJ who conducted the hearing is no longer employed at the Board and afforded the opportunity to have a new hearing before a current VLJ. He was informed that if he did not respond, then the Board would assume that he did not want another hearing and proceed accordingly. To date, the Veteran has not requested another hearing. At the time of the March 2020 Board hearing, the Veteran submitted new evidence that had not been reviewed by the Agency of Original Jurisdiction (AOJ). While the Veteran stated during the hearing that he would be submitting a waiver of AOJ review of this evidence, no such written waiver is of record. Under 38 U.S.C. § 7105(e), if the claimant or the claimant's representative submits new evidence with or after a substantive appeal received on or after February 2, 2013, then it is subject to initial review by the Board unless the Veteran explicitly requests AOJ consideration. In this case, the relevant substantive appeal was received in October 2017; accordingly, 38 U.S.C. § 7105(e) is applicable and initial AOJ review of this evidence is waived. In a March 2020 letter, the Veteran's treating VA psychologist, Dr. R.D, opined that the Veteran is unemployable because of his mental health conditions, including MDD. Therefore, the issue of unemployability has been raised by the record and the issue of entitlement to a TDIU has been added to the instant appeal. See Rice v. Shinseki, 22 Vet. App. 447, 453, 54 (2009). The issues of entitlement to service connection for posttraumatic stress disorder (PTSD), and alcohol abuse as secondary to PTSD and/or service-connected major depressive disorder, have been raised by the record. See PTSD disability benefits questionnaire (DBQ), dated in August 2017. These issues have not been adjudicated by the RO, and they are REFERRED to the RO for appropriate action. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. 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. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 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. Where a veteran is diagnosed with multiple disabilities of the same body part/system, and it is unclear from the record which symptoms are attributable to each distinct disability, the Board is precluded from differentiating between the symptomatology and the disabilities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to an initial rating in excess of 50 percent for MDD. The Veteran is in receipt of a 50 percent initial disability rating for MDD under 38 C.F.R. § 4.130, DC 9434. He seeks a higher rating. The Veteran's MDD is rated under the general rating formula for rating mental disorders pursuant to 38 C.F.R. § 4.130, DC 9434. Under such formula, a 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. In applying the above criteria, the Board notes that, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected disability, such signs and symptoms shall be attributed to the service-connected disability. See 38 C.F.R. § 3.102; Mittleider v. West, 11 Vet. App. 181 (1998), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Effective August 4, 2014, VA amended the portion of the Rating Schedule dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the updated Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094. The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction on or after August 4, 2014. Id. VA adopted as final, without change, the interim final rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board as of August 4, 2014. See 80 Fed. Reg. 53, 14308 (March 19, 2015). Here, the RO certified the Veteran's appeal to the Board after August 4, 2014; therefore, the bipolar disorder claim is governed by DSM 5 and the GAF scores are not relevant for consideration. See Golden v. Shulkin, 29 Vet. App. 221, 225-26 (2018) (holding that the Board errs when it uses GAF scores to assign a psychiatric rating in cases where DSM-5 applies). When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. On review, the Board finds that the Veteran's MDD symptoms have most nearly approximated occupational and social impairment with deficiencies in most areas for the entire period on appeal. While the August 2017 VA examination report indicated that the Veteran had multiple mental health diagnoses and attempted to differentiate what symptoms are attributable to each diagnosis, the Board found it highly probative that the VA examiner opined that it is not possible to differentiate what portion of the Veteran’s occupational and social impairment is caused by each mental disorder, due to the overlap in symptoms as well as the negative impact the diagnoses have on the ability to effectively tolerate and manage stress and problem solve. As such, the Board considered all of the occupational and social impairments caused by the Veteran’s multiple mental health conditions to be attributable to the service-connected MDD, even though some specific symptoms were attributable to non-service connected mental health conditions. The evidence reflects that the Veteran has experienced symptoms of difficulty in establishing and maintaining effective and social relationships. See March 2020 letter from treating VA psychologist, Dr. R.D. (noting social isolation, relationship problems, and adjustment problems); March 2020 Board hearing transcript (reporting difficulty maintaining relationships with friends and family). The Veteran has also reported experiencing suicidal ideations and continuous panic or depression affecting ability to function independently, appropriately, and effectively. See March 2020 Board hearing transcript (noting extreme mood swings); March 2020 letter from treating VA psychiatrist, Dr. D.K. (noting a history of two suicide attempts); March 2020 letter from Dr. R.D. (noting vast extremes in mood vacillations from mania to lows of depression); August 2017 VA examination report (attributing past suicidal ideation and attempt, as well as depressed mood, anhedonia, and hopelessness, to MDD); August 2017 VA treatment record (reporting that he avoids public spaces in order to avoid panic attacks); July 2014 letter from Dr. R.D. (noting isolating behaviors). Finally, the evidence reflects that the Veteran has experienced symptoms of depressed mood, suspiciousness, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, irritability, and disturbances of motivation or mood. See March 2020 Board hearing transcript; August 2017 VA examination report; December 2014 VA examination report; June 2014 statement from M., the Veteran’s girlfriend; and March 2014 statement from D., the Veteran’s ex-wife. For these reasons, the Board finds that the Veteran's MDD symptoms have more nearly approximated occupational and social impairment with deficiencies in most areas throughout the initial rating period on appeal, warranting a 70 percent rating. However, a rating higher than 70 percent is not warranted because the evidence does not reflect that the Veteran’s MDD has caused total occupational and social impairment. There is no evidence of disorientation to time or place, persistent delusions or hallucinations, persistent danger of hurting self or others, grossly inappropriate behavior, gross impairment in thought processes or communication, intermittent inability to perform activities of daily living, or memory loss for close relatives, own occupation, or own name. Throughout the period on appeal, the Veteran has maintained a relationship with his family, done volunteer work, and been active in his church. See March 2020 Board hearing transcript. The Board notes further that a higher rating of 100 percent based on total occupational and social impairment generally requires symptoms severe enough to severely distort the individual's perception of reality, which is not shown by the record. For these reasons, total occupational and social impairment is not demonstrated by the record, and a 100 percent rating for the Veteran's MDD is not warranted. Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). 2. Entitlement to a TDIU. It is the established policy of VA that all veterans who are unable to secure and maintain substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. Controlling laws provide that a TDIU may be assigned when a veteran has one service-connected disability rated at 60 percent or more, or two or more service-connected disabilities where at least one disability is rated at 40 percent or more and the combined rating is at least 70 percent. 38 C.F.R. § 4.16(a). The record must also show that the service-connected disabilities alone result in such impairment of mind or body that the average person would be precluded from securing or maintaining a substantially gainful occupation. Id. The Veteran in this case has met the schedular percentage requirements for a TDIU under 38 C.F.R. § 4.16(a) since March 30, 2010. As of that date, he was service-connected for coronary artery disease (rated 60 percent disabling from March 30, 2010); hypertension (rated 10 percent disabling from August 14, 2003); and scars of the trunk and left leg (each rated 0 percent disabling from March 30, 2010). The remaining question is whether these service-connected disabilities preclude the Veteran from securing and following a substantially gainful occupation. See 38 C.F.R. § 4.16(a). The fact that a veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable “of performing the physical and mental acts required” to be employed. Id. at 363. Thus, the central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2019). In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit held that, when a veteran is claiming TDIU based upon the combined effects of multiple service-connected disabilities, VA’s duty to assist “does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities.” See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to “the effect of combinations of disability,” VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner’s opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev’d on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). There is no regulatory definition of “substantially gainful employment.” 38 C.F.R. § 4.16(a) provides guidance in that it states: “Marginal employment shall not be considered gainful employment.” It also says definitively that marginal employment exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Even if the income exceeds the poverty threshold, marginal employment may still exist on a facts-found basis. One example given is employment in a protected environment like a family business or a sheltered workshop. 38 C.F.R. § 4.16(a). VA must consider the nature of employment. Id. Notably, in Ray v. Wilkie, the Court of Appeals for Veterans Claims defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran’s DD-214 indicates that he served on active duty for approximately 25 years. His military occupational specialty was telecommunications operations chief. After a review of all the evidence of record, lay and medical, the Board finds that the Veteran has been unable to secure or maintain substantially gainful employment due to his service-connected disabilities. The Board finds that the Veteran's symptoms and functional impairments related to his service-connected disabilities, including irritability, extreme variations in mood, panic attacks, depressed mood, isolating behaviors, difficulty establishing and maintaining effective relationships, disturbances of motivation and mood, anxiety, suspiciousness, and chronic sleep impairment, preclude him from obtaining and maintaining any type of substantially gainful employment for the entire period on appeal. In making this finding, the Board finds the July 2014 and March 2020 opinions authored by Dr. R.D., the Veteran’s treating VA psychologist, as well as the October 2014 Disability Benefits Questionnaire completed by Dr. R.D., to be competent and highly probative as they are factually accurate and contain sound reasoning and are based on the doctor’s long term treatment of and familiarity with the Veteran. For these reasons, and resolving all reasonable doubt in the Veteran's favor, the Board grants a TDIU for the entire period on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Megan R. Thomas Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S.E., 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.