Citation Nr: 21004411 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 18-50 481 DATE: January 27, 2021 ORDER Effective May 24, 2017, a 70 percent rating for depressive disorder with anxiety (psychiatric disability) is granted. Effective June 25, 2017, a total disability rating based on individual unemployability due to service-connected psychiatric disability is granted. FINDINGS OF FACT 1. Since May 24, 2017, the evidence demonstrates that the Veteran’s depressive disorder with anxiety distress has been productive of suicidal tendencies and occupational and social impairment with deficiencies in most areas. 2. Since June 25, 2017, the Veteran’s service-connected psychiatric disability has precluded her from obtaining and maintaining substantial and gainful employment consistent with his education and occupational experience. CONCLUSIONS OF LAW 1. Effective May 24, 2017, the criteria for a 70 percent disability rating for depressive disorder with anxiety distress have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. 2. Effective June 25, 2017, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.326, 3.340, 3.655, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 2006 to December 2013. The Veteran presented sworn testimony at a hearing before the undersigned in January 2021. 1. Entitlement to a rating in excess of 30 percent rating for depressive disorder with anxiety distress. The Veteran’s depressive disorder is rated at 10 percent, effective December 19, 2013 and at 30 percent, effective August 18, 2014. The Veteran is a seeking an increased rating for his depressive disorder with anxiety. As an initial matter, the Board notes that the period on appeal begins August 29, 2017, the date VA received the Veteran's written correspondence seeking a rating in excess of 50 percent for PTSD, and includes the one-year "look back" period for increased ratings claims. See Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010). As the evidence of record show a worsening took place within the year prior to VA's receipt of his informal claim, the Board finds that the assignment of a May 25, 2017 effective date is appropriate. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (holding that the effective date for an increased rating is predicated on when the increase in the disability can be ascertained). Depressive disorder with anxiety distress is evaluated under a general rating formula for mental disorders. See 38 C.F.R. § 4.130, Diagnostic Code 9434. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted where there is an 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 and maintaining effective work and social relationships. Id. A 70 percent rating is warranted where there is an occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and inability to establish and maintain effective relationships. Id. A 100 percent disability rating contemplates total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms, but the use of the term “such as” in the General Rating Formula demonstrates that the symptoms after the phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign for psychiatric disabilities, the Board’s “primary consideration” is the Veteran’s symptoms. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). The September 2017 examiner determined the Veteran had occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care and conversation. The Veteran reported the following symptoms: anxiety, panic attacks that occur weekly or less often, chronic sleep impairment and suicidal ideation. See September 2017 Mental Disorders DBQ. The evidence demonstrates that the Veteran’s psychiatric disabilities symptoms correspond to a 70 percent disability rating. In this regard, the United States Court of Appeals for Veterans Claims (Court) has held that suicidal ideation generally rises to the level contemplated in a 70 percent evaluation. See Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). The Court specified that VA must not require “more than thought or thoughts to establish the symptom of suicidal ideation,” and may not require that the Veteran have “been hospitalized or treated on an inpatient basis” to establish suicidal ideation because that “imposes a higher standard than the criteria in the Diagnostic Code for mental disorders.” Bankhead, 29 Vet App. at 20. Thus, resolving all reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports a 70 percent disability rating for the Veteran’s adjustment disorder with depressed mood. This represents a full grant of the benefits sought, as the Veteran testified at the January 2021 Board hearing, that the grant of a 70 percent disability rating effective May 24, 2017, and the grant of a TDIU would satisfy his appeal. See AB v. Brown, 6 Vet. App. 35. 2. Entitlement to a TDIU. The Veteran asserts that his service-connected psychiatric disability preclude her from obtaining or following substantially gainful employment. See January 2020 Hr’g Tr.; see also August 2017 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. The Board has granted a 70 percent rating for the Veteran’s depressive disorder with anxiety distress, effective May 24, 2017. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system or of a common etiology or single accident are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Here, as the Veteran’s psychiatric disability, tinnitus and bilateral hearing loss are of a common etiology, and the combined rating for Veteran’s service-connected disabilities is 60 percent, the Veteran’s service-connected disabilities satisfy the criteria set forth in 38 C.F.R. § 4.16(a). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to TDIU is based on an individual’s particular circumstance.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran’s master’s degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., 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 • 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. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran lists May 24, 2017 as the last time he worked full-time. Additionally, the Veteran was on administrative leave and paid through June 24, 2017. See August 2017 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran was last employed as a corrections officer and completed 2 years of college. The Veteran testified, that she missed time from work due to her service-connected anxiety. Given the evidence regarding the severity of the Veteran’s service-connected psychiatric disability, the Veteran’s functional limitations due to her service-connected disability, her individual work experience and training, and with resolution of all reasonable doubt in his favor, the Board finds that the evidence shows she is entitled to an award of a TDIU rating. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, entitlement to a TDIU is warranted from June 25, 2017. As the evidence of record shows that the Veteran has been unable to maintain a substantially gainful occupation for more than one year prior to the date of her claim for an increase, a TDIU is warranted effective June 25, 2017, the date the Veteran’s administrative leave from work concluded. Gaston v. Shinseki, 605 F.3d 979, 980 (Fed. Cir. 2010); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jacquelynn M. Jordan, 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.