Citation Nr: 21072614 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 12-12 792 DATE: December 3, 2021 ORDER Subject to the laws and regulations governing the award of monetary benefits, entitlement to a 70 percent rating for a major depressive disorder is granted for the entirety of the appeal period. REMANDED The issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The evidence is in relative equipoise regarding whether the Veteran's service-connected major depressive disorder results in occupational and social impairment with deficiencies in most areas. CONCLUSION OF LAW The criteria for entitlement to a 70 percent rating for a major depressive disorder have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2004 to December 2007. This appeal to the Board of Veteran's Appeals (Board) arose from a May 2010 rating decision by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran requested a hearing before the Board, which was conducted in January 2017. The transcript of the hearing is associated with the claims file. In April 2017, the Board remanded this appeal for further development. In March 2018, the RO granted service connection for a right ankle disability. As the Veteran did not file an NOD contesting either the effective date, or the compensation level assigned, following the grant of service connection, this issue is no longer part of the current appeal. Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). The RO also granted a 50 percent rating for the service-connected major depressive disorder from December 23, 2009 (the entirety of the appeal period). Because the maximum benefit has not been granted, the issue of entitlement to a higher evaluation remains on appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). The law requires that the Veterans Law Judge (VLJ) who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C. § 7102; 38 C.F.R. § 20.707. In January 2021, the Board sent the Veteran a letter notifying him of the unavailability of the VLJ who presided over the January 2017 hearing. The Veteran was provided the opportunity to testify before another VLJ. The letter also informed the Veteran that, if he did not respond within 30 days of the date of the letter, the Board will assume he does not want a hearing and proceed accordingly. See January 2021 BVA Letter. The Veteran did not respond within the applicable time period, and the Board proceeded with the appeal. In May 2021, the Board assumed jurisdiction of entitlement to TDIU rating in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009). The claims were remanded for further evidentiary development. Lastly, an IHP was filed on the Veteran's behalf in January 2021 by the DAV. The Veteran was informed that for a representative other than the MOPH, who was his representative of the time, to represent him, he would need to complete and sign the proper authorization forms. He has not yet complied with this requirement. In August 2021, the Veteran was informed that MOPH had been removed as VA recognized Veterans Service Organization (VSO) and was no longer authorized to represent him. Therefore, MOPH was removed as his representative. Entitlement to a rating in excess of 50 percent for major depressive disorder The Veteran's psychiatric disorder is currently rated at 50 percent disabling under Diagnostic Code 9434, in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Under the General Rating Formula for Mental Disorders, a 70 percent evaluation 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); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if 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 United States Court of Appeals for the Federal Circuit (Federal Circuit) has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Turning now to the relevant evidence of the record, on the February 2010 VA Examination, the Veteran reported a general lack of caring and not having relationship skills. He endorsed symptoms of depression and sleeping difficulties. He reported that his symptoms caused him to be late during the work weeks and he lost his job as an emergency dispatcher. He endorsed sporadically having suicidal thoughts. He had homicidal thoughts regarding people he fought. Other symptoms included obsessive and ritualistic behavior, panic attacks, memory difficulties, and anxiety. There was occasional decrease in work efficiency or intermittent periods of inability to perform occupational tasks due to his psychiatric disorder. A July 2010 Neuropsychological Assessment concluded that the Veteran's cognitive weakness was more likely related to his current mental health status. There was no evidence of thought disorder, delusions or hallucinations. He denied suicidal or homicidal ideation. See September 2010 VA Treatment Records. On the April 2012 VA Examination, the Veteran was diagnosed with a personality disorder. The examiner opined that it was as likely as not that all of the Veteran's presenting symptoms were related to his personality disorder. The Veteran experienced occupational and social impairment due to mild or transient symptoms which decrease efficiency only during periods of significant stress due to the following symptoms: depressed mood, anxiety, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and inability to establish and maintain effective relationships. He endorsed self-harm but denied intent or plan. Despite this denial, he endorsed thoughts of wanting to hurt people when he became angry. The examiner explained that it was speculative to parcel out the symptoms related to personality disorder and mood symptoms. It was as likely as not that his mood symptoms are characterological in nature. The examiner explained that the Veteran's personality disorder was not related to service but rather was existent prior to service and consist of a lifelong pattern of behavior that generally interferes with many aspects of life. Regarding his symptoms of depression, the examiner stated that the Veteran did not describe any additional symptoms than what was reported at the last VA examination in February 2010. The examiner opined that it was as likely as not that his symptoms of anger, avoidance of people, flat affect and lack of emotion are characterological in nature rather than specific to an acquired mood disorder. At the July 2016 VA Examination, the examiner noted that the Veteran was diagnosed with a major depressive disorder but currently exhibited minimal symptoms. His diagnosis of unspecified personality disorder was also noted. His depressive disorder, history of TBI, and personality disorder produced overlapping effects such that the relative portions of social and occupational impairment could not be differentiated. His symptoms included depressed mood, anxiety, chronic sleep impairment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control. He reported periodic passive suicidal thoughts but convincingly denied suicidal plans or intent. He expressed that he rarely slept, was easily distracted, hyper-alert, irritable, confrontational, and unmotivated. He endorsed decreased sleep, low energy, decreased appetite, weight gain, flat and "crappy" mood, and decreased enjoyment. The Veteran had motivation to keep promises to his son. A June 2021 VA examiner noted that the Veteran's symptoms of depressed mood, diminished interest, low energy, fatigue, feelings of worthlessness, and sleeping difficulties were due to his depressive disorder and that his symptoms of irresponsibility, irritability, and aggressiveness were due to his personality disorder. The examiner opined that most of the Veteran's functional impairment was a result of his personality disorder. After a thorough consideration of the evidence of the record, the Board finds that the evidence is in at least relative equipoise regarding whether the Veteran's major depressive disorder symptoms approximate the severity level contemplated by the 70 percent rating criteria. The Board acknowledges that his irritability, aggressiveness, and avoidance were attributed to his personality disorder, which is not service-connected. However, at times, he has endorsed suicidal and self-harm thoughts, albeit without an intent or plan. The United States Court of Appeals for Veterans Claims has held that "passive suicidal ideation entails thoughts such as wishing that you were dead, while active suicidal ideation entails thoughts of self-directed violence and death." Bankhead v. Shulkin, 29 Vet. App. 10 (2017). The rating criteria does not distinguish between passive or active suicidal ideation. When the Veteran reported suicidal thoughts, it was not attributed to his nonservice-connected personality disorder. Further, he has experienced constant depression, which has been characterized as severe, diminished interest, and feelings of worthiness, all of which have been attributed to his service-connected major depressive disorder. Therefore, resolving reasonable doubt in favor of the Veteran, the Board finds that a 70 percent rating for his service-connected major depressive disorder is warranted for the entirety of the appeal period. However, the Board finds that the Veteran does not exhibit total social and occupational impairment, which is contemplated by the 100 percent rating criteria. Although he has endorsed thoughts of harm to others, he has not been deemed to be a persistent danger of hurting himself or others. There has been no intent or plan to harm others. The evidence has shown that the Veteran has always been oriented to time, person and place. Although he suffers from memory difficulties, the evidence, lay or medical, does not show that he experiences memory loss (e.g., forgets the name of relatives or his own name). He has denied hallucinations and delusions. At each examination, he has been cooperative and appropriately groomed and dressed, and has been able to communicate appropriately. The Board concludes that the severity of the Veteran's symptoms is adequately contemplated by the 70 percent rating that has been newly assigned herein. In summation, the Board finds that, for the entirety of the appeal period, a 70 percent rating, but no higher, is warranted for the Veteran's service-connected major depressive disorder. REASONS FOR REMAND TDIU After a thorough review of the claims file, the Board finds that additional development is necessary prior to the adjudication of the Veteran's claim for a TDIU. Specifically, his employment status needs clarification. On the May 2013 VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability), he reported that he last worked full-time in April 2013 for the U.S. Army Reserve. At the July 2016 VA Examination and January 2017 Board Hearing, he reported that he worked in the commissary as a produce stocker. Since then, there has been no other update regarding the status of his employment. Marginal employment is not considered substantially gainful employment and is generally deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment, such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration is given to the nature of the employment and reason for termination. 38 C.F.R. § 4.16. Currently, the record requires clarification regarding the nature of the Veteran's current and past employment status. In order for the Board to make a clear and informed determination in this matter, a remand is necessary to accord the agency of original jurisdiction an opportunity to obtain updated information regarding his current employment status and his employment history. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to complete and submit an updated VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) and an updated VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits). 2. Request the Veteran submit information regarding the nature of his occupation as a produce stocker. This information should include, but is not limited to, his schedule (number of days and hours worked), earning statements, pay stubs, tax returns, etc. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate the TDIU issue remaining on appeal. If the benefit sought remains denied, furnish to the Veteran (and if applicable at the time, his representative) an appropriate supplemental statement of the case (SSOC). The Veteran (and if applicable, his representative) should be afforded the appropriate time period to respond. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Middleton, 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.