Citation Nr: 21063863 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 18-41 128 DATE: October 18, 2021 ORDER From May 31, 2016, a rating of 70 percent, but no higher, for major depressive disorder (MDD) is granted. From May 31, 2016, a total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. From May 31, 2016, the Veteran's MDD was manifested by symptoms productive of impairment that more closely approximated occupational and social impairment, with deficiencies in most areas, to include suicidal ideation. 2. The Veteran's MDD and bilateral knee disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. From May 31, 2016, the criteria for a rating of 70 percent, but no higher, for MDD are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code (DC) 9434. 2. From May 31, 2016, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1975 to November 1978. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In an August 2019 decision, the Board denied entitlement to a rating in excess of 50 percent for MDD. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2021 Order, the Court granted a Joint Motion for Remand (JMR) submitted by the Veteran and the Secretary of VA (Parties), vacated the August 2019 Board denial, and remanded the matter to the Board for compliance with the JMR instructions. The Parties agreed that the Board failed to adequately address the Veteran's argument that the January 2017 VA examination was inadequate and that a new examination was warranted due to the current severity of her symptoms. See September 2021 JMR, January 2019 Appellate Brief. The Parties also agreed that the Board erred in failing to address the Veteran's claim for a TDIU reasonably raised per Rice v. Shinseki, 23 Vet. App. 1 (2009), and also formally claimed on a prescribed form. See September 2016 VA Form 21-526EZ; September 2016, November 2016, January 2017 VA Forms 21-8940. The Parties did not note any other deficiencies in the Board's prior analysis. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) ("Court will [not] review BVA decisions in a piecemeal fashion"); Fugere v. Derwinski, 1 Vet. App. 103, 105 (1990) ("[a]dvancing different arguments at successive stages of the appellate process does not serve the interests of the parties or the Court"); Cf. Chisem v. Gober, 10 Vet. App. 526, 527-8 (1997) (under the "law of the case" doctrine, appellate courts generally will not review or reconsider issues that have already been decided in a previous appeal of the same case, and therefore, Board is not free to do anything contrary to the Court's prior action with respect to the same claim). 1. From May 31, 2016, a rating of 70 percent, but no higher, for MDD is granted. The Veteran asserts that she is entitled to an increased 70 percent rating for MDD. See September 2016 VA Form 21-526EZ, March 2018 Notice of Disagreement (NOD), September 2021 Appellate Brief. The Board agrees. The Veteran is currently in receipt of a 50 percent rating under 38 C.F.R. § 4.130, DC 9434 for MDD. The period on appeal is from September 20, 2016, the date of claim, plus the one-year lookback period. 38 C.F.R. § 3.400. Under DC 9434, a 70 percent rating is warranted where MDD is manifested by 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); inability to establish and maintain effective relationships. Additionally, the Court has held that the language of the regulation (General Rating Formula for Mental Disorders) indicates that the presence of suicidal ideation alone, that is, a Veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. See Bankhead v. Shulkin, 29 Vet. App. 10, 20 (2017). A 100 percent rating is warranted where MDD is manifested by 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. 38 C.F.R. § 4.130, DC 9434. Regarding the January 2017 VA examination report, the Parties agreed in the September 2021 JMR that the Board failed to address the adequacy of the examination in its August 2019 decision and failed to address the Veteran's July 2019 argument that the symptoms outlined in the examination were inconsistent with the examiner's findings. In this regard, the Board notes that the 70 percent rating being awarded in this decision is the specific relief sought by the Veteran and her counsel. See September 2021 Appellate Brief. Thus, any concerns outlined by the Veteran's representative regarding the January 2017 VA examination report are moot as the benefit being sought on appeal (a total rating for the entire appeal period) is awarded in full herein. Throughout the appeal period the Veteran submitted to one VA examination in January 2017. The VA examiner confirmed the Veteran's diagnosis of MDD. The Veteran reported periods of "feeling down." The VA examiner concluded that symptoms such as depressed mood, chronic sleep impairment, and disturbances of motivation and mood were resulting in an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The Veteran has also reported psychiatric symptoms to VA treatment providers. In May 2016, the Veteran reported she had little interest or pleasure in doing things and that she felt down, depressed, or hopeless every day. See May 31, 2016 VA treatment records. At an August 2016 evaluation, the Veteran reported to a VA physician that she was more depressed lately with her mood worsening over the last several months, consistent with her May 2016 treatment. See August 2016 VA treatment records. The Veteran also reported that while she was not having thoughts of suicide or harming others, she had recently been thinking about "her time," which the examiner associated with his inquiry regarding suicidal ideation. Id. One week prior to her January 2017 VA examination, the Veteran reported to a VA psychiatrist that she was feeling depressed and irritable on most days. See January 2017 VA treatment records. At an April 2017 VA medical visit, the Veteran reported that she had self-discontinued her prescribed psychiatric medication, which was restarted in October 2016, and that while she recently experienced several days of feeling little interest in things and depression, that she was now experiencing good mood, energy, and sufficient sleep. See April 2017 VA treatment records. The examining VA staff physician concluded the Veteran's unmedicated depression was asymptomatic. Id. The Veteran's depression was noted to be asymptomatic by VA treatment providers again in November 2017, May 2018, December 2018, and June 2019. Despite being noted as asymptomatic, the Veteran reported in May 2018 that in the two weeks prior to her VA medical center visit, she experienced little interest in things and depression for several days and that she had actively avoided situations that reminded her of past traumatic events accompanied by hypervigilance and feelings of emotional detachment. See May 2018 VA treatment records. At the May 2018 VA visit, the Veteran noted that she does a lot a domestic work. Id. The Veteran reported at a depression screen completed in June 2019 that she felt depressed nearly every day and had little interest in doing things. See June 2019 VA treatment records. The Veteran denied thoughts of hurting herself or others. Id. A staff physician reviewed the Veteran's responses to this depression screen in June 2019 and concluded that no further intervention was needed. Id. During a July 2020 depression screen, the Veteran reported feeling down for several days. See July 2020 VA treatment records. In addition to the above discussed medical evidence, the Veteran has also reported that her psychiatric symptoms are resulting in "difficulty in adapting to stressful circumstances" and reported on her August 2018 VA Form 9 that she is now experiencing suicidal ideation. In her September 2021 lay statement, the Veteran noted that her depression and stress began to worsen in 2016 and this worsening resulted in her passive thoughts of suicide. See September 2021 Veteran lay statement. She further reported that once or twice a month she experiences incapacitating bouts of depression that result in her remaining in bed for days at a time and an intermittent inability maintaining her personal hygiene. Id. The Veteran expressed experiencing difficulty communicating with others, including family members, due to easily losing patience and unprovoked irritability. Id. The Veteran also recalled at some time in the past attempting to force feed her son who expressed a lack of gratitude for her cooking and brandishing a firearm at a former spouse. Id. The Veteran reported that her depression has, over the years, led to feelings of detachment from others. The Veteran also reported that she often forgets to take her psychiatric medication and is angry when she is reminded to do so by her spouse. Id. Here, the evidence shows that the Veteran has experienced passive suicidal ideation throughout the appeal. As noted above, suicidal ideation alone is a sufficiently severe symptom to warrant a 70 percent rating. See Bankhead, supra. While the VA examiner did not note the Veteran's report of suicidal ideation, the Board observes that the Veteran credibly endorsed suicidal ideation throughout the appeal period. Additionally, the evidence shows that the Veteran experiences depression that at times is near-continuous. In sum, the evidence shows that the Veteran's mental health symptoms have, since May 31, 2016, adversely affected her family relations, social relations, and daily functioning, and thus her symptomatology has more closely approximately occupational and social impairment with deficiencies in most areas, which is consistent with a 70 percent rating. 38 C.F.R. § 3.400(o)(2) (earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date). The Veteran does not assert, and the evidence does not show, symptomatology consistent with a total rating. In this regard, the Veteran does not have total social impairment as she reports regularly visiting with friends, going places with her granddaughter, and lives with her spouse, son, daughter, and granddaughter. See January 2017 VA examination report, December 2018 VA treatment records. Moreover, the record does not show symptoms of the severity, frequency, and duration associated with a total rating, and her attorney does not assert otherwise. Accordingly, entitlement to a total schedular rating for MDD is not warranted. However, as discussed below, a TDIU is warranted. 2. From May 31, 2016, entitlement to a TDIU is granted. The Veteran asserts that she is unable to secure or follow a substantially gainful occupation due to her service-connected MDD and bilateral knee disabilities. The Board agrees. 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, provided that she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is in receipt of a 70 percent rating for MDD and bilateral knee disabilities rated as 10 percent disabling each. Thus, she meets the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58 (2019). The Veteran reports that she medically retired from federal service in either December 2000 or 2005 and additionally that at that time she began receiving social security disability income. See September 2016, November 2016, and January 2017 VA Forms 21-8940; August 2021 Vocational Assessment. Thus, the Veteran is not in receipt of any income from employment and the economic component of a TDIU is met. Turning to the noneconomic component, the Veteran reports that she graduated from high school in 1967 and earned a bachelor's degree in Sociology and Recreation in 1973. See August 2021 Vocational Assessment, September 1997 Social Security Administration (SSA) Records. During the Veteran's period of active duty from November 1975 to November 1978, her military occupation specialty (MOS) was that of a communications specialist. See DD Form 214. The Veteran reports that after her discharge from active duty, she worked as a counselor in the Job Corps at a national park. See August 2021 Vocational Assessment. The Veteran reports that in her role in the Job Corps, she was required to consistently traverse rough and uneven stone as well as many stairs and attend to the needs of park visitors and trainees. See September 2021 Veteran lay statement. Accordingly, the Board finds that the Veteran's predominant post-service work history required both physical soundness and mental acuity. Regarding the Veteran's bilateral knee disabilities, a January 2017 VA examiner opined that the Veteran would be precluded from any activity that requires repetitive bending, kneeling, squatting, or climbing. See January 2017 VA knee examination report. VA treatment providers also note the Veteran uses a cane to assist in ambulation due to her knee pain. See July 2016 VA treatment records. The Veteran reports constant pain in her knees that prevents her prolonged walking or standing, obtaining sound sleep. See August 2021 Vocational Assessment, September 2021 Veteran lay statement. She also reports difficulty with attending to the activities of daily living due to her bilateral knee disabilities, to include trouble getting dressed, ambulating independently, requiring assistance with shopping, and reports incapacitating flare-ups precipitated by any physical activity. Id. Indeed, SSA records demonstrate that the Veteran has been considered disabled for psychiatric symptoms and bilateral knee disabilities since March 1997. See SSA Disability Determination and Transmittal. In May 1997, a physician noted that the Veteran was limited to medium manual activity with a severe limitation of functional capacity and that she was incapable of minimum sedentary activity due to continued anxiety, depression, and bilateral knee arthritis. See SSA medical records. Regarding the Veteran's MDD and its effect on her ability to obtain and maintain gainful employment, a mental health evaluation reveals that in September 1997, the Veteran was restricted in her activities of daily living, maintaining social functioning, and had a noted deficiency in concentration resulting in a failure to complete tasks. See September 1997 Psychiatric Review. The examiner concluded that the Veteran was restricted to understanding, remembering, and completing simple, repetitive tasks in low stress situations. Id. The examiner diagnosed MDD and noted her concentration and ability to recall would limit her to routine tasks in a job without interpersonal requirements. Id. More recently, the Veteran reported her MDD was resulting in an overall lack of motivation and energy, difficulty in completing basic tasks and household chores, and involuntary and unprovoked irritability when caused to engage with other people. See August 2021 Vocational Assessment. The August 2021 certified rehabilitation counselor concluded that the Veteran's depressed mood, lack of motivation, anxiety, and Veteran inability to sustain concentration for extended periods expected by any reasonable employer would preclude her from being able to sustain employment. Id. Here, the most probative evidence of record shows that the Veteran is unable to secure and maintain substantially gainful employment due the combination of her service-connected MDD and bilateral knee disabilities. Accordingly, a TDIU is granted from May 31, 2016. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Rouse, 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.