Citation Nr: 21002618 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 13-07 992 DATE: January 14, 2021 ORDER An initial 70 percent disability rating for a service-connected depressive disorder is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s service-connected depressive disorder symptoms has resulted in occupational and social impairment with deficiencies in most areas; but has not resulted in total occupational and social impairment at any point during the appeal period. 2. The preponderance of the evidence weighs for finding that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected depressive disorder. CONCLUSIONS OF LAW 1. The criteria for an initial 70 percent rating for a depressive disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9435. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1993 to January 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Board remanded this appeal for additional development. This matter was again remanded by the Board in May 2019 for additional development. The Board finds that there has been substantial compliance with those remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with its remand instructions, and imposes upon VA a concomitant duty to insure compliance with the terms of the remand); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial rather than strict compliance with the Board’s remand directives is required under Stegall). 1. An initial rating in excess of 30 percent for a service-connected depressive disorder prior to June 27, 2012 and in excess of 50 percent thereafter Legal Criteria The Disability ratings are assigned in accordance with VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The Veteran’s depressive disorder is rated under the General Rating Formula for Mental Disorders, which provides that a 100 percent rating is warranted for total occupational and social impairment, due to such symptoms as, for example: 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. 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, for example: 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. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as, for example: 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. 38 C.F.R. § 4.130. The symptoms listed in VA’s general rating formula for mental disorders are not an exhaustive list, but rather serve as examples of the type and degree of symptoms, or their effects, that would justify a rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). The Board is precluded from differentiating between symptoms attributable to service-connected and nonservice-connected mental health disorders absent clinical evidence clearly showing such distinction. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126 (a). The evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the time of examination. Id. Further, a rating cannot be assigned solely based on social impairment. 38 C.F.R. § 4.126 (b). Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App, 119 (1999). Where, as here, the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration. Factual Background & Analysis The Veteran’s service-connected depressive disorder is assigned a 30 percent disability rating prior to June 27, 2012 and a 50 percent disability rating thereafter. On December 2010 VA psychological examination the Veteran reported that he sometimes has difficulty getting out of bed because he is depressed and in pain, has unrestful sleep, is depressed and anxious, admits to panic attacks approximately 2 to 3 times per month. Occasionally he has had intrusive recollections back to some of his difficult experiences while aboard ship in the military. He reported decreased interest, energy, anhedonia and decreased motivation. Medically retired from his job between 2007 and 2009 after a motor vehicle accident and back injury. He applied to be a police dispatcher, but did not obtain that job. The Veteran reported he was teaching classes for the NRA once per month but had recently stopped. The Veteran reported continuous symptoms of anxiety and depression. The examiner noted that his social functioning is grossly intact for basic skills, but he can be withdrawn and depressed. During a March 2011 VA psychological examination, the Veteran reported symptoms of depression which became worse after accident in October 2007. He acknowledges occasional suicidal thoughts but denies plan or intention to hurt himself. His wife is fed up with this temper; he doesn’t have any friends. He does not spend time with family because he gets mad around them. Has lost interest in riding bikes, socializing with friends, going to movies. Nothing really interests him anymore. He feels detached from others and does not trust people. He does experience a restricted affect; does not feel much of a future. He averages 5 hours of sleep a night with difficulty falling asleep. He is irritable, especially if he feels he is being belittled or criticized. Veteran indicated he does get up frequently throughout the night to check and make sure his house is secured. He indicated having memory difficulties and has difficulties studying or reading. Reports his symptoms have worsened since he retired; he indicated working helped manage his symptoms. On June 2011 VA psychological examination the Veteran states that he usually wakes up around 6:30 a.m. in the morning with anxiety and anger. He finds it hard to get out of bed. He cannot name any hobbies or close friends. He eats irregularly and his weight has decreased. He believes that panic symptoms are secondary to not being able to work; has trouble even making up his mind to order at a restaurant. He has responded minimally to treatment. His social functioning is somewhat impaired by his mood problems and his personality disorder. On June 2012 VA psychological examination the Veteran reported depression symptom of low frustration tolerance has led to recent stress at work, and as a result the veteran has been missing work (a few days throughout the year and then this entire past week). When demands of the job are increased beyond the Veteran’s perceived control, his level of depression increases as well, to the point where this past week he left work due to low frustration tolerance and decrease to his self-esteem. Anxiety symptoms were noted to be very mild and do not significantly impact functioning at this time. Veteran stated his marriage is doing okay, he has very few friends and sees them once every 8 months. An August 2013 Disability Benefits Questionnaire (DBQ) completed by a Dr. Heather Henderson-Galligan (Dr. H.H-G) reports that the Veteran has a diagnosis of depressive disorder. He was noted to have occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and or mood. His symptoms included, depressed mood, anxiety, panic attacks, near-continuous panic, mild memory loss, impairment of short and long-term memory, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting, inability to establish and maintain effective relationships, suicidal ideation, neglect of personal appearance and hygiene, intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene. She further noted that he cannot sustain or retain the stress from a competitive work environment and cannot be expected to engage in gainful activity secondary to his severe level of depression, highlighted by persistent suicidal ideation, depression and severe social isolation/withdraw. On July 2017 VA psychological examination the Veteran was diagnosed with other specified depressive disorder, other specified anxiety disorder and other specified personality disorder. His depressive disorder was ascribed symptoms of depressed mood, anhedonia, amotivation, low self-esteem, sense of worthlessness and apathy. Anxiety disorder was ascribed symptoms of reduced reliability and productivity. Impairment due to all these disorders were noted to be occupational and social impairment with deficiencies in most areas. Both the Veteran and his wife indicated that he has a very difficult time getting along with others because their behavior quickly becomes annoying to him and he begins nit-picking about minor issues. A bad night of sleep is 4 to 6 hours, and this occurs 3 times per week. The Veteran indicates he has anxiety in large crowds. He becomes tense in response to unexpected noises such as the sound of a car backfiring. At present, he experiences anxiety episodes a couple of times per week, often in public situations such as when grocery shopping. The Veteran indicates that, cognitively, he feels he has problems with memory and concentration that first began when he retired from the police force. He describes general forgetfulness and absentmindedness such as losing track of where he puts things down and being unable to recall people’s names. Denver VAMC records spanning from 2014 to 2018 document the Veteran reporting he is more irritable, has racing thoughts, just as depressed as ever, has periods of unease that last hours at a time, forgetting things, suicidal thoughts, moods are on a “rollercoaster,” easily overwhelmed, copes with emotions by yelling and screaming, unable to experience positive emotions, exaggerated startle response, hypervigilance, traumatic nightmares, and feeling alienated from others. The Veteran stated, “It seems like every time I go out of the house something bad happens.” He described becoming frustrated to the point of yelling after waiting for over an hour for his doctor’s appointment to be told he was a no show; spending more and more time in his home. After filing for divorce in 2018, the Veteran states he was lonely and depressed at the home alone, experiencing waves of depression, avoids seeing his ex-wife because “it rips the wound open” and said that the divorce may have been the best thing that’s happened to him. A February 2019 addendum medical opinion submitted by Dr. H.H-G opined that, based on the medical treatment records, statements from the Veteran and friends of the Veteran, her prior examination of the Veteran and the VA psychological examinations of record, that the Veteran suffers from major depressive disorder that has most closely approximates occupational and social impairment with deficiencies in most areas since the date of his claim, June 30, 2010. She explained that the Veteran’s service-connected depressive disorder causes significant issues with work, family relations, judgment, thinking, or mood since the date of his claim. With regards to symptoms that have been attributed to a personality disorder during service and during post-service VA psychological examinations, the examiner opined that the Veteran does not suffer from a personality disorder. She explained that none of the Veteran’s treating physicians have ever diagnosed the Veteran with a personality disorder. Rather, personality disorders generally arise in adolescence, and the Veteran did not have any mental issues until his time in service. Furthermore, she stated that symptoms various VA examiners attributed to a personality disorder, such as irritation, frustration, reduced coping, etc., are all attributable to his service-connected depressive disorder as they are common symptoms for this diagnosis. Based on the foregoing, the Board finds the evidence is certainly in relative equipoise as to whether the Veteran’s service-connected depressive disorder has caused a history of deficiencies in most areas of functioning from the outset of the appeal period onwards thus warranted an initial 70 percent disability rating. Specifically, the Board affords significant probative weight to Dr. H.H-G’s February 2019 opinion that, from the outset of the appeal period onwards, the Veteran’s psychiatric symptoms have caused severe deficiencies with work, family relations, judgment, thinking, and mood, due to such symptoms as, for example: suicidal ideation; 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); neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting) and an inability to establish and maintain effective relationships. Moreover, this medical opinion was thorough, demonstrated a complete review of all the pertinent medical records and contained a well-supported rationale to supports its conclusions. The Board further finds that the Veteran’s PTSD symptoms have not caused a degree of impairment contemplated by a higher 100 percent rating criteria (total occupational and social impairment) during this period. None of the VA or private psychological examinations of record have characterized the Veteran as being totally occupationally and socially impaired due to the symptoms caused by his service-connected depressive disorder. Therefore, while the Veteran’s disability is admittedly serious, there is no evidence or allegation that suggests it similarly approximates the frequency or duration contemplated by a 100 percent rating. To the contrary, the Veteran appears to have retained at least some degree of normal functioning over the years, despite intermittent exacerbations and remissions of serious symptoms. Consequently, the Board finds the preponderance of the evidence is against finding the Veteran’s service-connected depressive disorder causes symptoms and deficiencies approximating total occupational and social impairment contemplated by a still higher 100 percent rating at any point during the period on appeal. 2. Entitlement to a TDIU Legal Criteria A TDIU may be assigned where the schedular rating is less than 100 percent if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of 1) a single service-connected disability ratable at 60 percent or more, or 2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). The central question is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability,” not whether the Veteran could find employment. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2016); Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Factual Background & Analysis Pursuant to this decision herein, the Veteran has been assigned an initial 70 percent rating for a service-connected depressive disorder throughout the period on appeal relevant to his TDIU claim. Accordingly, he meets the minimum regulatory requirements for consideration for a TDIU based on a single service-connected disability ratable at 60 percent or more. 38 C.F.R. § 4.16 (a). A September 2020 vocational assessment completed by a qualified vocational consultant is of record. The vocational consultant determined after a thorough review of the Veteran’s medical records that he is unable to perform his prior work as a police officer (medium, skilled) or as a call center representative (sedentary, skilled) due to the mental limitations caused by his service-connected depressive disorder. Further, the vocational consultant cited to Dr. H.H-G’s conclusion in her February 2019 psychological evaluation that the Veteran has been unable to sustain employment due to his service-connected depressive disorder. Moreover, this conclusions is supported by the medical records and evidence of record documenting the Veteran’s inability to maintain his employment due to his depressive symptoms, impaired judgment, poor coping skills, anger outbursts, and impaired thinking, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work or a work like setting. The vocational consultant determined based on the severity of these symptoms that the Veteran would be unable to work with the public, demonstrate judgment consistent with police work or safely navigate the work environment for law enforcement work. Further, in in terms of other work for which the Veteran is trained and/or educated to perform, the vocational consultant likewise determined that he is unable to perform any substantial gainful employment due to his service-connected depressive disorder. She stated that this has been the case since he last worked full-time in June 2012. Based on the foregoing, the Board finds that the preponderance of the evidence weighs for finding that the Veteran is unable to secure and follow substantially gainful employment due to his service-connected depressive disorder. In resolving all reasonable doubt in the Veteran’s favor, the Board finds that entitlement to a TDIU is warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kyle McKone 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.