Citation Nr: 21072556 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-53 458 DATE: December 3, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for Major Depressive Disorder is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The overall evidentiary record shows that the severity of the Veteran's psychiatric disorder most closely approximated the criteria for a 70 percent disability evaluation for the period on appeal. 2. The Veteran was not rendered unable to obtain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 70 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. §§1155, 5107; 38 C.F.R.§§ 4.1, 4.3, 4.7, 4.10, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to a total disability rating based on individual unemployability (TDIU) have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to August 1979. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. The Veteran was service connected for major depressive disorder in May 2013 and given a 50 percent rating. He filed a claim for increased rating in October 2013. After an April 2014 Disability Benefits Questionnaire (DBQ), the RO increased his rating for major depressive disorder to 70 percent in May 2014. The effective date was October 28, 2013, based on the date VA received his claim for an increased evaluation. 1. Entitlement to a disability rating in excess of 70 percent for Major Depressive Disorder The relevant rating criteria for an acquired psychiatric disorder are as follows: A 70 percent rating is assigned for 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. 38 C.F.R. § 4.130, Diagnostic Code 9434. 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; memory loss for names of close relatives, own occupation, or own name. Id. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions and the Veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on social and occupational impairment rather than solely on the examiner's assessment of the level of disability at the moment of examination. 38 C.F.R. § 4.126(a) (2016). When evaluating the level of disability from a mental disorder the rating agency will consider the level of social impairment but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The Court has held that the use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of symptomatology contemplated for each rating. In particular, use of such terminology permits consideration of items listed as well as other symptoms and contemplates the effect of those symptoms on the claimant's social and work situation. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Following a complete review of the appellate record, the Board finds that the Veteran's psychiatric symptoms have not caused the level of impairment required for a disability rating of 100 percent during the appellate period. The Veteran's symptoms more closely approximated the symptoms associated with a 70 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 70 percent rating. Evidence of record does not show total occupational and social impairment. The April 2014 examiner noted symptoms such as depressed mood, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining relationships, adapting to stressful situations, and suicidal ideations. The Veteran reported thoughts of suicide that scare him, but has no intention of acting upon it per his religious beliefs. The examiner stated the Veteran does not appear to pose any threat of danger or injury to self or others. The examiner noted 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. The examiner also stated the Veteran presented with normal speech, takes showers daily to mitigate the odor from his skin graft, is able to sort his medication and take it properly, and manages his own finances. These findings do not indicate that the severity, frequency, and duration of the Veteran's symptoms has risen to the level contemplated by the 100 percent disability rating. In assessing the Veteran's symptomatology in toto as to any portion of the period on appeal, the Board finds that none of the relevant evidence of record informs the Board of a symptomatology that warrants a rating in excess of what has been contemplated and assigned by the highest rating on the rating scale. The evidence shows that the Veteran did not show symptoms such 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. For the reasons stated above, the Board finds that the weight of the evidence establishes that the Veteran's psychiatric disorder has most closely approximated the 70 percent criteria for the entire appeal period and any claim seeking a higher disability rating from October 28, 2013 must be denied. As the preponderance of the evidence is against the assignment of a higher rating, the benefit-of-the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a total disability rating based on individual unemployability (TDIU) The Board has considered whether the Veteran is entitled to a total disability rating based upon individual unemployability (TDIU). The issue of entitlement to a TDIU is part and parcel of an increased rating claim when such claim is raised by the Veteran or the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). The claim for TDIU has been raised by the Veteran on the September 2014 Notice of Disagreement. Subsequently, the Veteran was granted a TDIU effective October 2013 to April 2020. However, the Veteran is not currently eligible for TDIU because the Veteran is currently employed. In the February 2021 Board hearing, the Veteran stated that he is currently working at the VA. As such, the claim for a TDIU must be denied. (Continued on the next page) The Veteran further stated, at the February 2021 Board hearing, "Just scared that I'm going to lose my job." Should the Veteran wish to file a claim for TDIU in the future, he is must submit VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). This form is required for consideration of a claim for TDIU. Cynthia M. Bruce Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Nelson, 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.