Citation Nr: 21068783 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 17-63 246 DATE: November 12, 2021 ORDER Entitlement to a rating higher than 50 percent for major depressive disorder with persistent depressive disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDING OF FACT The Veteran's major depressive disorder with persistent depressive disorder is not shown to result in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for a rating higher than 50 percent for major depressive disorder with persistent depressive disorder have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434 (2020) REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1992 to July 1994. In an August 2015 rating decision, the RO denied an increased evaluation for dysthymic disorder with anxiety disorder and TDIU. In September 2020, the Veteran testified in a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. In May 2021, the Board remanded the claim for further development. The case has now returned for adjudication. Subsequent to the Board's remand, the RO recharacterized the nature of the disorder to major depressive disorder with persistent depressive disorder following more recent diagnoses of such disorder. Regardless of how the disorder is currently characterized, VA applies the same rating schedule for mental disorders. Increased Ratings - Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. See Francisco, 7 Vet. App. at 58; Hart, 21 Vet. App. at 505. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 1. Entitlement to a rating higher than 50 percent for major depressive disorder with persistent depressive disorder The Veteran is in receipt of a 50 percent rating for major depressive disorder with persistent depressive disorder (hereinafter referred to as depressive disorder). Her depressive disorder is rated under 38 C.F.R. § 4.130, DC 9434. All psychiatric disabilities are evaluated under the General Rating Formula for Mental Disorders. A 50 percent rating is warranted for 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 effective work and social relationships. A 70 percent rating is warranted when the psychiatric disorder results in occupational and social impairment with deficiencies in most areas such as work, school, family relations, judgment, 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 an 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. A total schedular rating of 100 percent is warranted when the disorder results in 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 mental and personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. When evaluating mental health disorders, the factors listed in the Rating Schedule are simply examples of the type and degree of symptoms, or their effects, that would justify a particular rating; the analysis should not be limited solely to whether a veteran exhibited the symptoms listed in the Rating Schedule. Rather, the determination should be based on all of a veteran's symptoms affecting his level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). The lists of symptoms under the Rating Schedule are meant to be examples of symptoms that would warrant the disability evaluation but are not meant to be exhaustive. Id. The Veteran essentially contends that her depressive disorder is more severe than what is contemplated by the currently assigned disability ratings. Based upon review of all the evidence of record, the Board finds that for the entire rating period, the service-connected depressive disorder manifested occupational and social impairment with reduced reliability and productivity, consistent with a 50 percent disability rating. VA treatment records dating from February 2014 to June 2015 show ongoing psychotherapy sessions at which time the Veteran reported issues with gender identity, transitioning, mood disturbances, and difficulties with school related to grades and costs. She had fair to good grooming. Her thoughts were always noted as linear and insight and judgment fair. She was noted to have normal speech, coherent thoughts, and was said to be goal oriented. She consistently denied suicidal or homicidal ideation. She voiced concerns about obtaining employment. The Veteran was afforded a VA psychiatric examination in June 2015 at which time the VA examiner diagnosed dysthymia/anxiety and gender identity disorder. The VA examiner attributed the Veteran's symptoms of transient mood changes with depressed mood most days to the Veteran's dysthymia and anxiety disorder. The examiner also noted symptoms of ongoing transgender issues with associated adjustment issues, social anxiety, and self-esteem concerns which were attributed to the gender identity disorder. The Veteran also reported an irregular sleep schedule, some memory issues and poor motivation. In terms of social impairment, the Veteran reported that she identified as a transgender female and resided with her daughter. She also had two other children from a previous marriage. In terms of occupational impairment, it was noted that the Veteran last worked in 2007 as a retail manager. She had graduated from college with a BA in marketing the previous year and was currently taking college classes in graphic design with the hope of free-lance work in the future. The VA examiner identified psychiatric symptoms of depressed mood, anxiety, and disturbances of motivation and mood. Upon mental status examination, the Veteran was alert and fully oriented, and noted to be a transgender female with poor grooming and hygiene. Her mood was anxious. The Veteran denied suicidal or homicidal ideations. The VA examiner opined that 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. VA psychotherapy sessions dating from February 2016 to January 2017 indicate that the Veteran was taking classes in February 2016. In September 2016, she reported some improvement in depression since changing medication but still had some emotional reactivity, especially with working with the public at work. She had very supportive co-workers. Her mood was "doing better" and her affect was good. She was calm. In November 2016, the Veteran reported difficulty getting out of bed some days due to work issues relating to being misgendered by the public but she had good relationships with coworkers. She had "some hard days" with respect to mood. In January 2017, the Veteran continued to report challenges at work due to being misgendered by the public and the ability to work only four hour shifts at a time. She reported "feeling down" at times and difficulty getting out of bed. Throughout the visits, the Veteran had fair insight and judgment and denied suicidal or homicidal ideation. The Veteran underwent a VA psychiatric examination in September 2017, at which time the examiner confirmed diagnoses of major depressive disorder, recurrent, severe, with anxious distress; persistent depressive disorder; and gender dysphoria. The Veteran's reported symptoms of sadness, frequent tearfulness, anhedonia, insomnia, fatigue, feelings of worthlessness and poor concentration were attributed by the examiner to the major depression/persistent depressive disorder. Socially, the Veteran reported that she lived with her daughter, had a close friend who she saw one to two times a week with whom she attended transgender events with. She had a positive relationship with her parents and children. She saw her parents approximately three times a year. She spent her time sleeping, watching television, playing Minecraft, or engaging in activities not requiring a lot of thought. In terms of occupational impairment, she was no longer taking college classes but worked at Office Depot from October 2016 to May 2017. She quit as she had difficulty getting herself out of bed to go to work and thought she would be fired at work for missed work and frequent breaks for emotional reasons. She had been unable to turn in job applications in person as she felt self-conscious, depressed, and did not want to leave the house. She reported poor concentration, fatigue, and lack of motivation which made it difficult for her to complete tasks. The VA examiner in September 2017 identified psychiatric symptoms of a depressed mood; anxiety; chronic sleep impairment; disturbance of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. At the examination, the Veteran was adequately groomed and appropriately dressed. Her speech was normal for volume, rate, and prosody. She was alert and fully oriented, and her thought processes were clear, goal-directed and logical. Her mood was depressed and emotional throughout most of the interview. Her cognition was within normal limits and she denied suicidal and/or homicidal ideation. The examiner concluded that the Veteran had occupational and social impairment with reduced reliability and productivity due to her depressive disorders. During the September 2020 Board hearing, the Veteran testified that she experienced one to two panic attacks per month, had no energy, and had changed her medications due to difficulty sleeping. She reported that she had been working since April in a merchandising job on a part-time basis and had a few jobs since she had filed her claim that only lasted two months. She testified that she could only handle working about 20 hours a week and was trying to "stream gaming" to make money. Pursuant to the Board's remand directive, the Veteran was afforded another VA psychiatric examination in July 2021. The examiner confirmed diagnoses of major depressive disorder, moderate, recurrent, with anxious distress and persistent depressive disorder. The Veteran reported difficulty controlling her emotions, difficulty falling asleep, feeling fatigued, low motivation, low energy, depressed mood, occasional panic attacks occurring at night, and feeling isolated. The Veteran reported living with her daughter with whom she had a good relationship. She had a few friends but did not see them often. Her family lived a few hours away. In her free time, she watched YouTube, played video games, and watched television. The Veteran reported that she had worked a few part-time jobs but had difficulty with the stress of retail jobs and would hide in the back room crying. She currently had a part-time job streaming online video games and sometimes worked as little as five hours a month. The VA examiner identified current symptoms of depressed mood; anxiety; panic attacks occurring weekly or less often; chronic sleep impairment; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. At the mental status interview, conducted via telehealth, the Veteran was appropriately dressed and groomed, with normal speech and calm psychomotor movements. Her affect was often tearful, and she had a depressed mood. She had a linear thought process, with normal content, good insight and judgment, and her memory appeared appropriate for her age. She denied suicidal and homicidal ideation. The examiner concluded that the Veteran's depressive disorders resulted in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran continued to have moderate depression characterized by depressed mood, tearfulness, isolative behavior, diminished motivation and interest in activities, and irritability. The VA examiner added that the Veteran was currently able to work a minimal part-time job from home as she required a low stress work environment away from the general public due to difficulty tolerating social interactions and day to day work stress. On review, the Board finds that the criteria for a rating higher than 50 percent for the Veteran's psychiatric disorder have not been met or more nearly approximated. The Board recognizes the Veteran's feeling of depression. She lacks motivation, has difficulty sleeping, and is often tearful. Indeed, she is diagnosed with major and persistent depressive disorders. Although the depressive disorders affect her mood and motivation, they are not shown to affect her ability to function independently. Throughout the appeal period, she has, on her own, applied for jobs, worked some part-time jobs, attended classes, and interacted with some family members. In other words, she is shown to still function independently despite the depression. In terms of anxiety, she is shown to have only one to two panic attacks monthly, which the Board does not find near-continuous anxiety. There is also no evidence of impaired impulse control or spatial disorientation. She has been fully oriented during evaluations, and her speech and thought processes have been noted as normal throughout the appeal period. She has denied suicidal and homicidal ideations. Although her depressive disorders produce irritability, there is no evidence showing that she has displayed unprovoked irritability with periods of violence. Further, there is no evidence showing that the Veteran has neglected her personal appearance or hygiene as she has appeared to examinations appropriately groomed with fair hygiene. Lastly, although the Veteran experiences social isolation, the evidence does not show that her depressive disorders result in the inability to establish and maintain effective relationships. Indeed, she has a relationship with her family, has some friends, and has had good relationships with former co-workers. The evidence also shows that she shares an apartment with her teenage daughter. Therefore, considering the severity, frequency, and duration of all the symptoms noted in the medical and lay statements, the Board finds that a rating higher than 50 percent rating is not warranted. Finally, the Board notes that neither the Veteran nor her representative have raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The issue of entitlement to a TDIU is addressed below. REASONS FOR REMAND 2. Entitlement to a TDIU As pertinent here, in May 2021, the Board found that the issue of a TDIU was inextricably intertwined and deferred adjudication pending an examination for the Veteran's psychiatric disorder. Subsequently, the RO determined that a referral for extraschedular consideration is not warranted and denied the claim because the Veteran does not meet the schedular criteria for entitlement to a TDIU. The Veteran is currently service connected for major depressive disorder (50 percent); chronic synovitis and collapsing bilateral knees, with symptomatic patellar chondromalacia (10 percent); chronic right knee synovitis with collapsing and symptomatic patellar chondromalacia (10 percent); and chronic left knee synovitis with collapsing and symptomatic patellar chondromalacia (10 percent). The combined evaluation for service-connected disabilities is 60 percent. The Veteran does not meet the schedular requirements for consideration for TDIU under 38 C.F.R. § 4.16(a). Nonetheless, under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), there is also a duty imposed on VA to consider TDIU even when the schedular criteria are not met. VA policy is that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The Board does not have the authority to grant an extraschedular TDIU in the first instance; rather, the Board must refer the claim to the Director of Compensation and Pension (C&P) for an extra schedular determination. Specifically, the United States Court of Appeals for Veterans Claims (Court) in Ray v. Wilkie, discussed whether a referral for extraschedular TDIU is warranted given the Veteran's occupation. The Court defined the term "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Here, a June 2016 VA vocational report noted that the Veteran had reduced capacity for lifting more than 26 pounds, carrying, pushing, climbing, balancing, stooping, kneeling, crouching, crawling, standing up to four hours or walking for up to one to four hours. In September 2020, the Veteran testified that she had only been able to hold a few part-time jobs and could only handle work about 20 hours per week. In July 2021, the VA examiner noted that the Veteran was currently able to work a minimal part-time job from home as she required a low stress work environment away from the general public due to difficulty tolerating social interactions and day to day work stress. Consequently, the Board finds that the evidence substantiates a reasonable possibility that the Veteran is unemployable due to her service-connected disabilities, and as such, referral to the Director, Compensation Service, for extraschedular TDIU consideration is warranted. The matter is REMANDED for the following action: 1. Refer the Veteran's TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted. Attention is called to the June 2016 vocational report, September 2020 testimony, and July 2021 VA examination report. 2. Thereafter, readjudicate the TDIU claim. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Beach, 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.