Citation Nr: 21067719 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-06 849 DATE: November 5, 2021 ORDER A rating in excess of 70 percent for major depressive disorder (MDD) is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, effective August 25, 2014, is granted. REMANDED A compensable rating for status post cystectomy for ovarian cysts prior to November 6, 2013 and a rating in excess of 10 percent thereafter is remanded. Entitlement to a TDIU prior to August 25, 2014 is remanded. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's MDD symptoms did not produce total occupational and social impairment. 2. The Veteran's service-connected disabilities precluded her from securing or following a substantially gainful occupation without accomodation from August 25, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 70 percent for MDD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9434. 2. The criteria for entitlement to a TDIU, effective August 25, 2014, have been met. 38 U.S.C. § 1155; 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 2004 to March 2005. A November 2013 rating decision granted an increased rating for status post cystectomy for ovarian cysts to 10 percent, effective November 6, 2013. As this does not constitute a full grant of the benefit sought for the entire appeal period, the claim remains in appellate status. AB v. Brown, 6 Vet. App. 35 (1993). In May 2020 and September 2020, VA received VA Form 10182, Decision Review Request: Board Appeal, appealing a March 2019 rating decision denying TDIU and a February 2020 rating decision restoring a 70 percent rating for MDD. These are non-initial rating decisions that cannot be appealed in the AMA. 38 C.F.R. §§ 3.2400, 19.2. July 2020 and December 2020 VA letters informing the Veteran the appeals were accepted into AMA were in error. The issues of entitlement to a TDIU and entitlement to an increased rating for MDD remain in the legacy system. 1. Entitlement to a rating in excess of 70 percent for MDD The Veteran is assigned a 70 percent rating for MDD for the entire appeal period. The Veteran contends she is entitled to an increased rating. Under the General Formula for Mental Disorders (General Formula), a 100 percent rating is assigned 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 inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The preponderance of evidence is against finding the Veteran's MDD produced total occupational and social impairment. A review of evidence shows a December 2016 VA treatment visit observed the Veteran presented with mildly depressed mood and affect. The Veteran reported feeling overwhelmed in life and difficulty regulating her emotions. She reported continued struggles with relationships and friends. A January 2017 VA treatment visit noted the Veteran was more easily dysphoric due to lack of a job and difficulty maintaining structure in her daily life. She reported poor sleep patterns and spending too much time chatting with friends on facebook at all hours or watching movies. She denied insomnia and hypomania. She denied suicidal thoughts. A February 2017 VA treatment visit observed improved mood and affect. The Veteran discussed a recent job interview. She reported managing her finances and doing okay. She reported having a couple friends move back to town and started going to church and bible study. She discussed dating and reported meeting a man online that she was connecting with in a positive way. She reported continuing to work on her co-parenting relationship with her ex-husband. She denied suicidal intent or plan. A March 2017 VA examination stated her daughter moved in with her ex-husband. The Veteran reported living with a friend. She reported seeing her daughter weekly. She reported being let go from Habitat for Humanity in August 2016 because she was in too much pain to work. She reported she was working as the outreach volunteer coordinator, which required her to be in the field and looking for volunteers. She was switched to the outreach family coordinator, which allowed her to stay in the office, but drowsiness from the medication made it difficult for her to do her job. The examination report noted the symptoms of depressed mood and anxiety. A March 2017 disability benefits questionnaire (DBQ) for mental disorders noted symptoms associated with MDD of depressed mood, suicidal ideation, lack of motivation, and sleep issues. The clinician opined the Veteran's MDD produced occupational and social impairment with difficulties is most areas, such as work, school, family relations, judgment, thinking and/or mood. The DBQ report noted the symptoms of depressed mood, anxiety, panic attacks that occur weekly or less often, chronic sleep impairment, impaired judgement, disturbances in motivation and mood, difficulty establishing and maintaining effective relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, suicidal ideation, obsessional rituals that interfere with routine activities, and intermittent inability to perform activities of daily living. An April 2017 VA treatment visit observed the Veteran presented with mildly depressed mood and affect. She reported working under a grant program and making a small amount of money. She stated it was positive to get out of the house and have purpose. She reported networking with other agencies. She reported problems with her ex-husband related to custody issues. She reported her boyfriend was deployed for 6 months and felt ambivalent about their time apart. She reported preferring being alone. She denied suicidal intent or plan. A May 2017 VA treatment visit reported doing really well. She reported volunteering locally and helping her daughter's class put together a care package for her boyfriend's unit deployed to Afghanistan. She reported keeping busy with creative projects. She denied depression. She reported getting about 7 to 8 hours of sleep most nights. A July 2017 VA treatment visit observed the Veteran presented with mildly depressed mood and affect. She discussed issues with her new boss at work. She reported stressors relating to finances, her relationship with her ex-husband, and medical issues. She denied suicidal intent or plan. A February 2018 VA treatment visit observed the Veteran presented with mildly depressed mood and affect. She reported having a house fire and lost everything. She reported marrying her boyfriend as a matter of fiscal necessity. She reported struggling with raising a rebellious 11-year-old that acted more like a teenager. She reported working at Big Brothers Big Sisters and discussed stress related to co-workers. She denied suicidal intent or plan. A July 2018 VA treatment visit observed the Veteran presented with mildly depressed mood and affect. She reported feeling empty and depressed. She reported sleep difficulty. She denied suicidal intent or plan. An October 2018 VA treatment visit reported feeling much better with increased energy. She reported managing her stressors better. A January 2019 VA treatment visit reported increased anxiety, jitteriness, and palpitations in recent weeks. She noted a recent change in medications for her thyroid. She denied feeling depressed, suicidal, or psychotic. A March 2019 VA treatment visit reported modest improvement in feeling in control of her emotions. She reported last weekend she slept for three days after having a friend buy her strong marijuana at the marijuana dispensary. She reported her husband was worried because she would not get up. She reported feeling overwhelmed and her emotions were all over the place. She reported high anxiety, worry, and not feeling right. She reported no longer feeling hopeless. She reported sleeping moderately better. A March 2019 VA treatment visit reported anxiety, feeling emotional, and tearing up easily. She reported not feeling right physically or mentally since being put on Armour thyroid medication. She reported feeling anxious, although not as jittery as a couple of months prior. She reported one minute she feels fine and the next minute she will cry. She reported insomnia and forgetfulness. She reported averaging about 3 to 4 hours of good sleep a night. She reported being busy with her daughter's sports practices and school. She noted her husband's deployment was pending. A June 2019 VA treatment visit reported her thyroid medications were properly adjusted by her new VA primary care doctor and she was feeling less labile and anxious. She reported ongoing anxiety triggered by things as simple as a tv show. She reported worry about her husband's upcoming deployment. A September 2019 VA treatment visit reported having a hard time adjusting to her daughter getting older and pulling away from her. She reported her thyroid dysfunction complicated her mood and sleep. She reported feeling overall relatively stable. She denied hypomania, depression, or suicidal thoughts. At private treatment visits in April 2021, May 2021, June 2021, July 2021, August 2021, and September 2021, the Veteran reported a good relationship with her father, but difficulties with her mother. She reported her relationship with her husband was strained related to his retirement from the military. She reported a good relationship with her daughter. She reported having a few friends and many acquaintances. She reported feeling supported by her family and friends. She reported working as a case manager. Mental status examination observed appropriate appearance. Concentration, memory, eye contact, judgement, insight, decision making, and coping were noted to be within normal limits. Attitude, affect, mood, speech, and thought content were noted to be appropriate. The Veteran denied hallucination, suicidal ideation, or homicidal ideation. At a July 2021 Board hearing, the Veteran reported not living with her daughter, but seeing her a few times a week. She reported her daughter is assigned a big sister through the Big Brother Big Sister program. She reported the program additionally gave her a part-time job that would accommodate her symptoms. She reported she can do work tasks at any time of day that suits her symptoms. She reported a weekly meeting with a supervisor to help manage her mental health. She reported getting married in 2018, with her husband being deployed in 2020. She reported a tumultuous relationship with her husband and is assigned a marriage counselor. She reported sleep impairment and trouble focusing and concentrating. She reported only leaving the house for medical appointments. She reported having her groceries delivered, so she does not have to go out. She reported her daughter stays with her some days, but is old enough to be independent. She reported periods of suicidal ideation, without a plan. She reported frequently waking up with uncontrollable crying at least two days a week. She reported she does not drive because of panic attacks. The Board finds the preponderance of evidence does not show the Veteran's MDD meets or most closely approximates the criteria for a 100 percent rating. The Board gives probative weight to lay statements of the Veteran during her treatment visits describing her symptoms, relationships, and functional abilities. See Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care). Looking to the criteria for a 100 percent rating, the evidence does not show gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board considered the March 2017 DBQ indicated the symptom of intermittent inability to perform activities of daily living. The Board finds the severity, frequency, and duration of MDD symptoms, as described by the Veteran, do not rise to the level contemplated by the 100 percent disability rating. The Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). Here, the Board finds the severity, frequency, and duration of the MDD symptoms most closely approximate the symptoms listed in the criteria for a 70 percent rating. Looking to the resulting impairment caused by the Veteran's MDD symptoms, the evidence does not show total occupational and social impairment. The Veteran reported some marital relationship strain, but has been married since 2018. The Veteran's daughter moved in with her ex-husband during the appeal period, but they maintained regular visitation and a good relationship. She reported participating in her daughter's sports and school. She reported attending church and bible study. She reported interaction with friends. See January 2017, February 2017, March 2017, and 2021 private treatment visits. She worked part-time during the appeal period. The Board acknowledges the Veteran was provided work accommodations, but finds her ability to maintain a part-time job and perform some work does not support total occupational impairment. The Board concludes the Veteran's symptoms did not cause the level of impairment required for a disability rating of 100 percent. Accordingly, a rating in excess of 70 percent for MDD is denied. 2. Entitlement to a TDIU The Veteran raised the issue of TDIU as associated with her increased rating claims. Therefore, TDIU will be considered part and parcel of the underlying increased rating claims. Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The Veteran meets the criteria for a TDIU on a schedular basis under 38 C.F.R. § 4.16(a). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, 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 (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). As discussed in detail below, the Board finds entitlement to a TDIU, effective August 25, 2014, is warranted. Entitlement to a TDIU prior to August 25, 2014 is remanded for additional development. The Veteran is service connected for MDD, status post cystectomy for ovarian cysts, endometriosis, left knee disability, and bilateral ankle disability for the entire period from August 25, 2014. The Veteran has a college degree. The evidence shows a work history as an outreach coordinator, clerical work for VA, and Kmart manager. The Veteran worked part-time for Habitat for Humanity from August 25, 2014 to 2016 and currently works part-time for Big Brothers Big Sisters. A May 2016 letter from M.J., the Director of Pensacola Habitat for Humanity, stated she was the Veteran's supervisor from August 2014 to July 2015. She stated the Veteran was permitted to arrange her schedule to complete her hours. She stated that due to the Veteran's chronic conditions, they accommodated and worked with her schedule. A July 2016 letter from a co-worker stated that he worked with the Veteran for two years at Habitat for Humanity. He reported the Veteran's numerous health issues caused her to miss work and leave early. A February 2017 Request for Employment Information form indicated the Veteran was employed by Habitat for Humanity from August 25, 2014 to August 26, 2016. The form indicated the Veteran missed 45 days during her last 12 months of employment. The form stated the Veteran worked 20 to 28 hours a week. The form stated the Veteran's job was modified several times to help her finish her contract. The form stated "as her health continued to decline, we accommodated her with low profile work, sometimes even work from home, even though it was hard to do her duties that way." The form stated she was sometimes late or did not show up due to severe pain. A July 2021 letter from K.S., Vice President of Programs for Big Brothers Big Sisters, stated the Veteran works at Big Brothers Big Sisters and receives accommodations for her disabilities. She reported the Veteran works from home and hours vary depending on her health. She stated the Veteran has weekly follow-up meetings with her supervisor, who help monitor her workload and ensure she does not get overloaded. She stated the Veteran also receives support from other staff members. At a July 2021 Board hearing, the Veteran reported being employed by Big Brothers Big Sisters. She reported working 25 to 30 hours a week. She reported being permitted to perform her work tasks at any time. She reported a weekly meeting with a supervisor to help manage her mental health. She reported no other workers are provided these accommodations. First, the Board finds competent and probative evidence that the Veteran's part-time work at Habitat for Humanity and Big Brothers Big Sisters was not substantial gainful employment. At both jobs, the Veteran was not working full-time and was permitted flexible hours and a flexible schedule. The Veteran's employment with Habitat for Humanity began August 25, 2014. Prior to August 25, 2014, the evidence shows the Veteran was in college from August 2007 to June 2010 and June 2010 to June 2014. See November 2018 Application for Increased Compensation Based on Unemployability. Prior to August 2014, the evidence shows the Veteran performed some work, to include at Kmart and clerical work for VA. The record does not contain sufficient details about her school and work prior to August 25, 2014 to adjudicate TDIU. Resolving reasonable doubt in favor of the Veteran, the Board finds the Veteran's service-connected disabilities precluded her from securing or following a substantially gainful occupation without accomodation from August 25, 2014. VA examinations and treatment records show the Veteran's service-connected knee and ankle disabilities would limit her ability to stand or walk for prolonged periods. VA examinations and treatment records show the Veteran's gynecological disabilities and MDD produced unpredictable symptoms, which would require she leave or miss work. The Veteran reported the medications for her service-connected disabilities make her drowsy and sometimes unable to concentrate on work tasks. The Board finds it is reasonably shown by medical evidence and statements from the Veteran and her employers that her service-connected disabilities would have prevented her from performing substantial gainful employment without accomodation from August 25, 2014. Accordingly, entitlement to a TDIU, effective August 25, 2014, is warranted. REASONS FOR REMAND 1. A compensable rating for status post cystectomy for ovarian cyst prior to November 6, 2013 and a rating in excess of 10 percent thereafter is remanded. The Veteran is assigned a noncompensable rating for status post cystectomy for ovarian cysts prior to November 6, 2013 and a 10 percent rating thereafter. The Veteran is also separately service connected for the gynecological conditions of endometriosis, status post hysterectomy and bilateral oophorectomy, and adhesions associated with status post hysterectomy and bilateral oophorectomy. Disability ratings may be assigned only if the symptomatology is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). The Veteran reports continued severe pelvic pain status post oophorectomy (surgical removal the ovaries). See July 2021 hearing testimony. The Veteran contends that after removal of her ovaries, they decided to "leave a piece" that is still producing hormones. Id. It appears there are outstanding relevant treatment records, to include post-op visits with Eglin AFB 96th Medical Group and treatment visits from the endocrinology clinic, Access Medical Group, that told her there could be a portion of ovary remaining after ovary removal. After the above records development is completed, a medical opinion is needed to address the Veteran's contention that her continued pelvic pain is a residual of her service-connected ovarian disability. 2. Entitlement to a TDIU prior to August 25, 2014 Prior to August 25, 2014, the evidence shows the Veteran was in college from August 2007 to June 2010 and June 2010 to June 2014. See November 2018 Application for Increased Compensation Based on Unemployability. Prior to August 2014, the evidence shows the Veteran performed some work, to include at Kmart and clerical work for VA. The record does not contain sufficient details regarding her school and work to adjudicate TDIU prior to August 25, 2014. The matters are REMANDED for the following action: 1. Request information from the Veteran regarding any employment or college coursework prior to August 25, 2014, to include (a.) name of employer, job title, dates of employment, and hours worked, and (b.) dates of college enrollment and credit hours per semester. 2. Ask the Veteran to complete a VA Form 21-4142 for (a.) Eglin AFB 96th Medical Group from March 2019 and (b.) Access Medical Group in Niceville, Florida. Make two requests for the authorized records, unless it is clear a second request would be futile. Of note, the Veteran has indicated her treatment records at Eglin AFB may be under a different last name. See February 2018 statement. 3. Obtain VA treatment records from December 2019 to the present. 4. After the above records development, obtain a gynecological medical opinion from an appropriate clinician. The clinician is asked to answer: Whether it is at least as likely as not (50 percent or greater probability) the Veteran's reported pelvic pain after oophorectomy is a residual of her service-connected ovary disability? The clinician is asked to consider: 1) The May 2019 VA treatment visit reporting her endocrinology clinic stated she probably had a small portion of ovary remaining and the VA clinician assessing this was highly unlikely. 2) An October 2019 MRI impression of a small cyst in right pelvis, which may represent a pelvic cyst, remnant of ovarian cyst, or a fluid filled bowel loop. 3) A November 2019 CT impression of surgically absent uterus and left ovary, with nonspecific soft tissue fullness in the right pelvis which could represent residual ovarian tissue or postsurgical changes. 4) Any relevant evidence received during records development. KELLI A. KORDICH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Winkler, 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.