Citation Nr: 21067092 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 19-28 572 DATE: November 3, 2021 ORDER Entitlement to a rating of 70 percent, but no higher, for major depressive disorder (MDD) for the entire period from March 8, 2012, is granted. REMANDED A total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, his MDD has been manifested by occupational and social impairment with deficiencies in most areas throughout the entire period from March 8, 2012. Total occupational and social impairment has not been shown. CONCLUSION OF LAW The criteria for a 70 percent rating, but no higher, for MDD have been met from March 8, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.130, Diagnostic Code (DC) 9434 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1959 to April 1989, including in the Republic of Vietnam. His awards include (among many) Meritorious Service Medal, Air Force Commendation Medal and Air Force Outstanding Unit Award. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2017 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). A December 2019 Board decision denied entitlement to an initial rating in excess of 70 percent for MDD from July 8, 2011 to March 7, 2012 and entitlement to a rating in excess of 50 percent for MDD from March 8, 2012. The Veteran appealed this determination to the United States Court of Appeals for Veterans Claims (Court). In December 2019, the Court granted a Joint Motion for Remand and remanded the claim to the Board for action consistent with the Joint Motion. In June 2021, the Board denied the issue of entitlement to an initial rating in excess of 70 percent for MDD from July 8, 2011 to March 7, 2012 and remanded the issue of entitlement to a rating in excess of 50 percent for MDD from March 8, 2012 to the agency of original jurisdiction (AOJ) for further development. The Board's remand directives have been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In an August 2021 rating decision, the RO increased the Veteran's rating for his MDD to 70 percent effective July 9, 2021. However, as such did not constitute a full grant of the benefit sought on appeal, the issue of entitlement to a rating in excess of 70 percent for MDD from March 8, 2012 remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The claim for a TDIU has been raised by the record and the Board now has jurisdiction over the issue. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran's appeal has been advanced on the docket. 38 C.F.R. § 20.902. Entitlement to a rating in excess of 50 percent for MDD from March 8, 2012 For the reasons that follow, resolving all reasonable doubt in favor of the Veteran, the Board finds that a rating of 70 percent, but no higher, is warranted for the entire period from March 8, 2012. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's MDD has been rated at 50 percent from March 8, 2012 and 70 percent from July 9, 2021 under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9434. Under the General Rating Formula, a 50 percent rating is warranted 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 often 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. Id. A 70 percent rating is warranted when there is 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. Id. A 100 percent rating is warranted when there is 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. Id. The rating of psychiatric disorders is ultimately based upon their resultant level of occupational and social impairment. 38 C.F.R. § 4.130; Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (2013). The evaluation, however, is symptom-driven, meaning that the symptomatology should be the fact-finder's primary focus in determining the level of occupational and social impairment. Id. at 116-17. This includes consideration of the frequency, severity, and duration of those symptoms. 38 C.F.R. § 4.126(a); Vazquez-Claudio, 713 F.3d at 117. Significantly, however, the symptoms enumerated in the rating criteria are merely examples of those that would produce such level of impairment; they are not exhaustive, and VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign a particular evaluation. Id. at 115; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Turning to the evidence of record, the Veteran underwent a psychiatric VA examination in March 2012. At that time, the Veteran reported that he never sought help for his mental issues while on active duty because he did not wish to be perceived as a "weak man." With regards to the Veteran's social functioning, he reported being married twice to his first wife, who first divorced him upon returning from Vietnam. She divorced him again after eight years due to reported problems with his erratic behavior, violence toward her and infidelity. The Veteran reported that "[he] was abusing her physically." The Veteran reported currently living with his second wife of 26 years. He has three adult children from his first marriage and one adult daughter from his current marriage. The Veteran reported that he occasionally becomes irritable with his current wife but she "hangs in there." He reported maintaining contact with his daughter and five-month-old grandson. The Veteran also reported having a couple of friends with whom he hangs out once or twice a year. He reported spending most of his time watching television and reading. As for occupational impairment, the Veteran reported working as a Reserve Officers' Training Corps (ROTC) instructor for 22 years following his separation from the military. He reported retiring in December 2010 due to eligibility and because "[he] just had enough." During the examination, the Veteran's primary symptoms were as follows: depressed mood, chronic sleep impairment, disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner noted that a mental condition has been formally diagnosed, but symptoms are not severe enough either to interfere with occupational and social functioning or to require continuous medication. The Veteran underwent another VA examination for his MDD in November 2016. At that time, the Veteran reported being married to his second wife and having six children. He reported maintaining positive contact with all of his children except for one son. The Veteran reported having a satisfactory social life, enjoying reading and jazz music. As to occupational functioning, the Veteran reported being fully retired at this time and staying busy with a variety of activities including limited exercise. He denied having any difficulties with activities of daily living. The examiner noted that the Veteran experiences symptoms of chronic sleep impairment and disturbances of motivation and mood. The examiner concluded that the Veteran has no mental disorder diagnosis. Pursuant to June 2021 Board's remand directives, the Veteran underwent a VA examination for his MDD in July 2021. At that time, the Veteran reported having good interactions and relationships with his family members. However, he reported having no social interactions outside of his family members. He reported experiencing racist behavior by others in his community. As to occupational impairment, the Veteran reported enjoying his time being ROTC instructor until his retirement in 2011. The Veteran reported that his MDD symptoms increased due to the negative racially charged atmosphere of the country over the past several years that strongly resemble the racism and racist behavior he endured during his time in the military. During the examination, the Veteran's primary symptoms were as follows: depressed mood, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately and effectively, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. The examiner noted that the Veteran's affect and mood were somewhat depressed. He denied any suicidal or homicidal ideations. The examiner concluded that the Veteran's MDD symptoms result in occupational and social impairment with reduced reliability and productivity. The evidence of record includes a private psychological examination with Dr. W. A. in November 2015. The Veteran's wife attended the examination. At that time, the Veteran reported being emotionally close only to his family, his wife in particular. He reported not having any social life outside of home. He reported enjoying the company of his grandson. The Veteran's wife reported that he has a "quick fuse at times" and exhibits verbal outbursts. She also reported that he sits facing the door in public settings, suggestive of hypervigilance. The Veteran reported that he last worked in 2010. He reported that his "short temper" negatively impacted his functioning in his workplace. He also reported appreciating order, organization and discipline. The Veteran's wife reported that the Veteran experiences days during which he does not leave his bed and he avoids any social contact. Dr. W. A. noted that the Veteran's impulse control, as demonstrated by his history of irritability and angry outbursts, falls below normal limits. His speech was quite normal in terms of manner and content. He denied suicidal or homicidal ideations. On administration of Montreal Cognitive Assessment (MoCA), the Veteran was oriented to all spheres. However, he exhibited problems with visual-motor precision, auditory rote recall, and verbal fluency. He was also unable to remember any of five possible items. Dr. W. A. diagnosed the Veteran with posttraumatic stress disorder (PTSD), unspecified depressive disorder, and cannabis use disorder. VA treatment records during the period on appeal are limited and show that the Veteran was generally alert and oriented to person, place, and time. See e.g., May 2016 VA treatment record. Based on a review of the evidence, and resolving reasonable doubt in the Veteran's favor, his MDD has more nearly approximated the criteria corresponding to a 70 percent rating for the entire appeal period. The evaluation of mental health disorders is ultimately based on the degree of occupational and social impairment; however, this determination is symptom driven. In that regard, the Veteran's MDD has manifested with symptoms that fall within the 30 percent to 70 percent rating criteria range. Consistent with the lower end of that range, the Veteran endorsed symptoms of depressed mood, suspiciousness, panic attacks, chronic sleep impairment, and mild memory loss. The symptoms he endorsed which would approximate a 50 percent rating include: flattened affect, panic attacks more than once a week, difficulty in understanding complex commands, impairment of short and long-term memory, disturbance of mood and motivation, and difficulty in establishing and maintaining effective work and social relationships. The symptoms he endorsed which would approximate a 70 percent rating include: 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), difficulty with adapting to stressful circumstances (including work or worklike setting), and inability to establish and maintain effective relationships. In terms of social functioning, the effects of MDD have been moderate to severe throughout the entire appeal period. Although the Veteran has reported having some relationships throughout the appeal period, the evidence of record shows that he suffers from self-isolation, which causes him to be unable to have close friendships. The Veteran reported mostly spending his time at home or going out with his wife. The Veteran's wife reported that the Veteran experiences days during which he does not leave his bed and he avoids any social contact. He also does not have contact with all of his children. In terms of occupational functioning, it appears as though the Veteran last worked in December 2010. He reported that he retired because "[he] just had enough." He also reported that his "short temper" negatively impacted his functioning in his workplace. During November 2015 psychiatric examination with Dr. W. A., the Veteran exhibited problems with visual-motor precision, auditory rote recall, and verbal fluency. He also exhibited memory issues. In light of the Veteran's symptoms of 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), difficulty with adapting to stressful circumstances (including work or worklike setting), and inability to establish and maintain effective relationships, the Board resolves all reasonable doubt in his favor and finds that a 70 percent rating, but no higher, is warranted throughout the entire appeal period. An even greater increase to 100 percent is not warranted. The Veteran does not experience persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger to himself or others, intermittent inability to perform activities of daily living, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. The evidence of record generally shows that he has been oriented to time and place. VA examinations generally show that the Veteran has been independent in his activities of daily living, and no impairment in the Veteran's memory such as memory loss of close relatives, own occupation or own name has been noted or reported. While his wife reported that the Veteran experiences days during which he does not leave his bed and he avoids any social contact, there is no indication that he is not able to perform activities of daily living. Based on this evidence, the Veteran's symptoms do not more nearly approximate a total social and occupational impairment; thus, the assignment of a 100 percent rating is not warranted. Additionally, the evidence of record shows that he has not experienced a total social impairment during the appeal period as he has reported having relationships with his spouse, some of his children and some of his relatives. He also appears to have some acquaintances. As such, the evidence does not indicate that his social impairment rises to the level of impairment contemplated by a total rating. Further, although Dr. W. A. noted that the Veteran's angry outburst negatively impacted his functioning in his workplace, total social and occupational impairment based on solely the Veteran's MDD symptoms was not noted. The Board acknowledges the contentions of the Veteran's representative, arguing that a rating in excess of 70 percent for his MDD is warranted. See September 2021 Informal Hearing Presentation. However, as noted, the evaluation of mental health disorders is symptom driven based on examination of the Veteran by mental health professionals, who are experts in their field. As such, the Board affords mental health examiners more probative value in determining the Veteran's disability rating for his MDD. The mental health professionals, upon examination of the Veteran during the appeal period, have not found his MDD symptoms to result in a total social and occupational impairment. In sum, after resolving doubt in the Veteran's favor, a 70 percent rating for MDD, but no higher, is warranted for the entire period on appeal. The Board has also considered the applicability of staged ratings; however, as discussed, a 70 percent rating is warranted throughout the appeal period. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND Entitlement to a TDIU As noted, the claim of entitlement to a TDIU has been raised by the record. See Rice, supra. The evidence of record indicates that the Veteran last worked in December 2010 at which time he fully retired. However, he reported that he retired because "[he] just had enough." See March 2012 VA examination. He also reported that his "short temper" negatively impacted his functioning in his workplace. See November 2015 private psychiatric examination. There is also evidence of the Veteran's issues with visual-motor precision, auditory rote recall, verbal fluency, and memory. In Rice, the Court held that a claim for a TDIU is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Given the evidence of record and Veteran's assertions, additional development is needed. The matter is REMANDED for the following action: 1. Ask the Veteran to submit a completed VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, including the Veteran's education, training, and work history; and additional supporting documentation including statements from his former employer(s). In particular, inform the Veteran that he should submit the appropriate form to request employment information from his prior employer(s) (e.g., VA Form 21-4192) to verify his employment details, including any work accommodations. Request that the Veteran submit detailed information regarding employment, including the nature of his duties as ROTC instructor and the impact his service-connected disabilities had on his employability. 2. Thereafter, conduct any additional development deemed necessary, to include an examination if necessary, and adjudicate the claim of entitlement to a TDIU. C. CRAWFORD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Kuzniar, 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.