Citation Nr: 21065490 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 17-31 475 DATE: October 26, 2021 ORDER Entitlement to an initial 70 percent rating for service-connected major depressive disorder with psychotic features is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to a total rating based on individual unemployability due to multiple service - connected disabilities (TDIU) prior to March 21, 2019 is granted, subject to the regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The evidence is at least in equipoise that for the entire initial rating period on appeal, the Veteran's service-connected psychiatric disorder resulted in symptoms that approximate occupational and social impairment with deficiencies in most areas; total occupational and social impairment was not shown. 2. Resolving all doubt in the Veteran's favor, prior to March 21, 2019 the Veteran's service-connected disabilities in combination were of such nature and severity as to preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating of 70 percent, but no higher, for service-connected major depressive disorder with psychotic features have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.1, 4.2, 4.3, 4.7 4.130, Diagnostic Code (DC) 9434. 2. The schedular requirements for TDIU prior to March 21, 2019 are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107(b), 5110; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1977 to December 1980 and from October 1981 to May 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). An August 2020 rating decision granted TDIU effective March 21, 2019. The issue of TDIU prior to March 21, 2019 remains before the Board for adjudication. This matter was remanded by the Board in February 2019. The Board finds that there has been substantial compliance with the February 2019 Board remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Claims Disability evaluations are determined by the application of the Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, if they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to an initial rating in excess of 30 percent for major depressive disorder with psychotic features. Procedurally, the Veteran was granted service connection for depressive disorder with psychotic features by a March 2015 Board decision. The October 2015 rating decision currently on appeal, implemented the grant and assigned a 30 percent disability rating effective January 7, 2013. Rating Criteria The criteria for rating psychiatric disabilities, other than eating disorders, are set forth in the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130. Ratings will be assigned based on all evidence of record that pertains to occupational and social impairment, rather than solely on an examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. Under DC 9434, a 30 percent rating is assigned for depression 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; mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned when there is 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; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relationships, 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. Lastly, a 100 percent evaluation 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; intermittent ability 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. Evidence A November 2013 VA Mental Disorders examination assigned diagnoses of dysthymic disorder with possible psychotic features and personality disorder not otherwise specified (NOS). Reported symptoms of the Veteran's dysthymic disorder included depressed mood most of the day, chronic sleep impairment, low energy, low self-esteem poor concentration, inability to establish and maintain effective relationships particularly with females, suicidal ideation, and homicidal ideations manifested as a voice telling him to kill his current female boss and his former female boss. The November 2013 examiner noted that the Veteran had a long - standing history of depression since childhood, due to emotional and physical abuse. He was divorced and not in a relationship. The Veteran's personality disorder presented with an enduring pattern of behavior that deviated from cultural expectations including shooting his dog, being accused of rape, and having to "fight off" his teenage niece, more than 15 speeding tickets, viewing expectations of being on time, following directions and accomplishing tasks at work as abuse, and homicidal ideations towards female supervisors. The VA examiner opined that the Veteran's dysthymic disorder symptoms resulted in occupational and social impairment which decrease work efficiency and ability during periods of significant stress consistent with a 10 percent rating. Occupationally, the Veteran reported being unemployed since 2009 until May 2013 because he took a buyout from Chrysler. He began working for General Motors in 2013 but was almost terminated three times for falling asleep, taking medical leave, and throwing a tool. In May 2014, a private psychologist examined the Veteran and completed a VA mental conditions disability benefits questionnaire. The sole diagnosis assigned was major depressive disorder, severe with recurrent psychotic features. The private examiner opined that the Veteran had total occupational and social impairment due to his major depressive disorder. His symptoms included depressed mood, anxiety, suspiciousness, mild memory loss, impairment of short - term and long - term memory, flattened affect, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, persistent delusions or hallucinations, and persistent danger of hurting self or others. The private examiner noted that the Veteran's musculoskeletal disabilities which were permanent and debilitating more likely than not aggravate his depressive disorder. A VA mental disorders examination was performed again in May 2017. At that time, the examiner opined the Veteran's major depressive disorder caused occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner noted that the Veteran responded vaguely and tersely to questions asked at the clinical interview and often declined to provide elaboration regarding his functioning. Accordingly, the examiner was unable to determine without resorting to mere speculation whether the Veteran met the full criteria for major depressive disorder. Historically, the May 2017 examiner noted that the Veteran was fired from his position at General Motors in November 2013. He then worked as a porter at a car dealership for about 4 to 5 months before he quit. He was found disabled by the Social Security Administration in 2014 and stopped looking for work. Symptoms identified on examination were depressed mood, suspiciousness, chronic sleep impairment, disturbances of motivation and mood and difficulty in establishing and maintaining effective work and social relationships. The May 2017 examiner noted the Veteran was hospitalized for 2 days after the November 2013 VA mental disorders examination. The examiner walked the Veteran down to the emergency room at the conclusion of the November 2013 VA examination. The discharge summary indicated diagnoses of major depressive disorder moderate without psychosis and personality disorder NOS. The Veteran was prescribed citalopram and trazadone. Records also indicated that he attended 7 outpatient psychiatric appointments between December 2013 and November 2015. Treatment notes reflected diagnoses of major depressive disorder (recurrent, moderate) and depression due to multiple medical problems. The Veteran did not have an explanation why he stopped treatment. He told the examiner that the VA stopped making mental health appointments for him, so he fell through the cracks. He denied initiating any further VA appointments or seeking mental health care through the civilian sector. The Veteran was examined by VA again in April 2019. The diagnosis assigned was other specified depressive disorder. The examiner opined that as a result of his mental health disorder the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. Symptoms included depressed mood, anxiety, and suspiciousness. A January 2021 private examination report indicates that the Veteran's depression makes it hard for him to focus and sleep; further indicating that due to a combination of mental and physical disabilities makes him unemployable as discussed further below. Analysis After careful review of the Veteran's claims file, the Board finds that the Veteran's symptoms more closely approximate the 70 percent disability rating. Importantly, the evidence of record documents that the Veteran's psychiatric disorder resulted in difficulty in adapting to stressful circumstances, including work or a worklike setting as well as an inability to establish and maintain effective relationships due to social isolation, suspiciousness and anxiety which are contemplated by the criteria for a 70 percent rating. While there are no recent treatment records for his depressive disorder, the aforementioned VA, and private examinations of record support such a finding. The fact the Veteran did not have the desire to seek mental health treatment itself supports the conclusion that his symptoms were more severe than previously rated. The VA examinations as well as the Veteran's own statements consistently described poor motivation, social withdrawal, worthlessness, sleep disturbances and at times, poor hygiene. Significantly, the Veteran's psychiatric disability also manifested in suicidal and homicidal ideations severe enough to have a VA examiner escort him to an emergency room at the conclusion of a VA examination. In so finding, the Board acknowledges the Veteran's private examiner determined that his service-connected psychiatric disability resulted in total occupational and social impairment consistent with a 100 percent rating. By contrast, the VA examiners did not find the Veteran's symptoms resulted in a level of impairment beyond that contemplated by a 30 percent rating. However, in viewing the evidence in total and for the reasons set forth above, affording the Veteran the benefit of the doubt as required under the law, his symptoms are more adequately compensated by the 70 percent disability rating. Accordingly, the Board finds the Veteran's claim for entitlement to a disability rating of 70 percent for service-connected major depressive disorder with psychotic features is granted. The record does not show, however, that a still higher 100 percent rating is warranted. In this regard, the record does not show that the Veteran's psychiatric disability is manifested by gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting himself or others, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that the Veteran does appear to have symptoms of passive suicidal and homicidal ideation, and mild memory loss; however, these are also symptoms directly contemplated by the 70 percent rating now assigned. Importantly, the record does not show that he has suffered from any other mental health symptoms of similar severity, frequency and duration resulting in total occupational and social impairment. Hence, a rating greater than 70 percent is not warranted. TDIU Total disability is considered to exist when there is any impairment 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). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). 2. Entitlement to a total rating based on individual unemployability due to service - connected disabilities (TDIU) prior to March 21, 2019. As previously indicated an August 2020 rating decision granted TDIU effective March 21, 2019. The issue of TDIU prior to March 21, 2019 remains before the Board for adjudication. The Veteran met the schedular requirements for the assignment of a TDIU since January 7, 2013. See 38 C.F.R. § 4.16 (a). The Veteran is service - connected for a lumbar spine disability rated at 20 percent, right knee arthrosis rated at 10 percent, left knee strain rated at 10 percent, left ankle fracture residuals rated at 10 percent, right lower extremity radiculopathy rated at 10 percent, residuals of right femur fracture, limitation of extension rated at 10 percent, scar left eye area rated at 0 percent, residuals of right femur fracture limitation of extension rated at 0 percent, residuals of right femur fracture impairment of thigh rated at 0 percent, left ankle scar rated at 0 percent, and right knee and thigh scars rated at 0 percent. An additional 70 percent rating for major depressive disorder was granted in this decision effective January 7, 2013. The record shows that the Veteran has a high school education. He was last employed as a mechanic in June 2014. He indicated on his VA 21-8940 Application for Increased Compensation Based on Unemployability that he was fired for not being able to keep up physically with the demands of the job. The medical evidence indicates that the Veteran's service-connected psychiatric disability has resulted in occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking and mood. It was also indicated that the Veteran would be limited in his ability to focus, concentrate, complete tasks in a timely manner, establish healthy interpersonal relationships, partake in a social setting, manage anger, and be consistent, reliable, or productive. VA examinations of the Veteran's service-connected spine, bilateral knee, right lower extremity radiculopathy and residuals from his right femur fractures, reflect the inability to perform any labor requiring prolonged sitting, walking, standing, lifting, bending, and carrying. It is unlikely that the Veteran could withstand the persistence or pace required to maintain full time work either physically or emotionally. The Board notes that the Veteran submitted a private physician statement dated January 2021. Dr. S.E. opined that the Veteran's physical and mental health disabilities result in mental and physical limitations which in combination with side effects of medications preclude an ability to maintain substantial gainful employment. The Board has reviewed the opinion and finds it probative on the issue of the Veteran's functional abilities. After weighing all the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities taken in combination have rendered him unable to secure and follow a substantially gainful occupation. In particular, the Veteran's service-connected musculoskeletal disabilities have caused exertional restrictions that limit his ability to perform physically active work. The Veteran's service-connected psychiatric disability has also caused significant non-exertional restrictions, which further limit his ability to complete tasks in a timely manner, establish work/social relationships, and be consistent, reliable, or productive. Moreover, while the Veteran does have a high school education and vocational training, his exertional and non-exertional limitations significantly erode his occupational base, making it difficult or nearly impossible for the Veteran to secure and follow a substantially gainful occupation. Therefore, the Board affords the Veteran the benefit of the doubt and finds that prior to March 21, 2019 he has been unable to obtain and maintain any form of substantially gainful employment by reason of his service-connected disabilities. Accordingly, the criteria for TDIU have been met. 38 C.F.R. §§ 3.340, 3.341, 4.16. Jennifer White Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Alexander 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.