Citation Nr: 21073012 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 13-14 773 DATE: December 7, 2021 ORDER Entitlement to a rating in excess of 70 percent for major depressive disorder (MDD) prior to June 3, 2021 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to June 7, 2011, is denied. Entitlement to TDIU from June 7, 2011, to June 2, 2021, is granted. Entitlement to TDIU beginning June 3, 2021, is denied. FINDINGS OF FACT 1. Prior to June 3, 2021, when the maximum 100% rating went into effect, the Veteran's MDD did not result in total social and occupational impairment. 2. The evidence of record does not demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to June 7, 2011. 3. The evidence of record establishes that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities from June 7, 2011, to June 2, 2021. 4. The evidence of record does not demonstrate that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities other than his 100-percent rating TDIU beginning June 3, 2021. CONCLUSIONS OF LAW 1. Prior to June 3, 2021, the criteria for entitlement to an initial rating in excess of 70 percent for major depressive disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.27, 4.120, 4.130, Diagnostic Code 9434. 2. The criteria for entitlement to a TDIU prior to June 7, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 3. The criteria for entitlement to a TDIU from June 7, 2011 to June 2, 2021, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 4. The criteria for entitlement to a TDIU beginning June 3, 2021, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from December 1982 to June 1983, from April 2002 to August 2002, from April 2004 to September 2004, and from April 2006 to September 2006. This matter was remanded by the Board in January 2020 for additional development, including consideration of a higher evaluation for the period on appeal. As a result of that development, a rating of 100 percent was granted for MDD from June 3, 2021. Because a 100 percent rating is the maximum schedular rating available, it is considered a complete grant of the increased rating benefit sought on appeal for the period beginning June 3, 2021; accordingly, it is no longer on appeal. Increased Rating The Veteran contends that his service-connected MDD warrants a rating in excess of 70 percent prior to June 3, 2021. Disability ratings are determined by comparing a veteran's present symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. A critical element in permitting the assignment of several ratings under various Diagnostic Codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran's service-connected major depressive disorder was rated under Diagnostic Code 9434, subsumed into the General Rating Formula for Mental Disorders, throughout the appeal period. Under this Diagnostic Code, a 70 percent rating is assigned with an 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 worklike setting); and inability to establish and maintain effective relationships. A 100 percent is warranted 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; 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. 38 C.F.R. § 4.130 Diagnostic Code 9434. 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 (2002). On the other hand, if the evidence shows that the 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. "[A] veteran may only qualify for a given disability rating under [38 C.F.R. § 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, 117 (Fed. Cir. 2013). A VA mental health screening in May 2010 was negative for depression. On evaluation in June 2011, the Veteran was not working, unable to cope with psychosocial problems and depression. He reported sleep disturbance, lack of interest in pleasurable activities, no motivation, feeling helpless and hopeless, and irritability at family members. He indicated that he did not socialize, and communication became difficult when he was tense or agitated. The Veteran endorsed feelings of helplessness, trouble concentrating and thinking clearly, which adversely affected his relationships with family and others. The examiner remarked that the Veteran's depression appeared to play a role in losing his job he was confused about time and date and had interaction problems with others. The examiner further noted that there was a significant change in the Veteran after he returned from active duty, because evidence showed he was productive and well-adjusted prior to military service. On VA examination in May 2012, the Veteran reported experiencing memory issues, needing repeated instructions at work, which had worsened in the previous few months. He experienced employment problems, financial difficulties, and housing insecurity. He stated he had suicidal ideation, but the examiner determined he was not a persistent danger to self or others. He endorsed symptoms of depressed mood, panic attacks that occur weekly or less often, flatten affect, difficulty in establishing effective work and social relationships, difficulty in adapting to stress circumstances including work or a work-like setting, and suicidal ideation. The examiner found the Veteran's MDD caused occupational and social impairment with deficiencies in most areas such as work, school family, relations, judgment, thinking, and/or mood. VA treatment notes from May 2014 show the Veteran continued treatment for depression, and that he was unemployed and recently divorced, but did not have hallucinations or suicidal ideations. On VA examination in July 2016, the Veteran indicated that he currently had a girlfriend, and saw his younger children every other week. He was pursuing an Associate's degree, but had difficulty keeping a job. He had difficulty sleeping and anxiety symptoms concurrent with depression, which he attributed to living far away from family and friends and in a cold climate. The examiner remarked that the Veteran's mood was depressed and his affect was flat and dysphoric. Current symptoms were depressed mood, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, flattened affect, gross impairment in thought process or communication, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation. The examiner found the Veteran's MDD symptoms led to 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. An examination was scheduled for January 2017, but the Veteran failed to appear for that evaluation. On VA examination in January 2019, the Veteran reported being socially isolated and withdrawn, living alone because he did not want to burden others. He no longer enjoyed activities and complained of memory issues. The evaluator stated that the Veteran could not sustain the stress from a competitive work environment or engage in gainful activity due to paranoia and physical symptoms of depression, such as fatigue. On VA examination in February 2019, the Veteran reported that he was not working, but he was attending college courses. He stated he had difficulty thinking critically in order to perform at his peak. The examiner noted occupational and social impairment with reduced reliability and productivity. The examiner found current symptoms of depressed mood, anxiety, flattened affect disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and suicidal ideation, however, the examiner remarked there was no persistent danger of hurting self or others. Again, the June 2021 VA examination is not for application as the assignment of a 100 percent rating based on that examination report constitutes a full grant of benefits sought on appeal on and after that date. After thorough review of the evidence of record, the Board finds that the criteria for a 100 percent rating prior to June 3, 2021, are not met. There is significant evidence of both social and occupational impairment when the examinations and other records dated during this period are considered. However, a 100 percent rating cannot be granted solely for social impairment; section 4.126(b) of Title 38 of the Code of Federal Regulations requires that while VA will consider the extent of social impairment, it shall not assign a rating solely on the basis of social impairment. Moreover, total occupational impairment is not shown. The May 2012, July 2016, January 2019, February 2019 VA examination reports each reflect that the examining VA provider did not conclude that the Veteran had total social and occupational impairment. These examination reports also reflect the Veteran either working or engaging in educational classes and involved in personal relationships. Moreover, while the focus in evaluating psychiatric disabilities remains focused on the overall level of occupational and social impairment, it bears noting that the evidence of record dated prior to June 3, 2021, does not reflect the manifestations contemplated by the 100 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating prior to June 3, 2021. The criteria for a 100 percent or higher rating are not met prior to that date, and the appeal must be denied. TDIU Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a TDIU claim is a component of an increased rating claim. The Board also notes that there is a separate appeal pending for TDIU, therefore, under Rice, entitlement to a TDIU must be considered in conjunction with the claims for increased ratings. The board finds that in this case, there is insufficient evidence to show Veteran's service-connected disabilities precluded substantially gainful employment prior to June 7, 2011. A TDIU may be granted where a veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or higher, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or higher, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38U.S.C. §1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or to impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. When a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability, but the percentage requirements of §4.16(a) are not met, the matter may be referred to the Director, Compensation Service, for consideration of entitlement to the benefits on an extraschedular basis. 38 C.F.R. § 4.16(b). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall be deemed to exist when a veteran's earned annual income does not exceed the poverty threshold for one person, or on a facts found basis when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment. Id. A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual decision rather than a medical question. Thus, VA is responsible for the ultimate decision as to whether a veteran is capable of securing or following substantially gainful employment, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the disability makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disabilities, is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For the purposes of assigning effective dates, TDIU claims are treated as if they are increased rating claims. 38 C.F.R. § 3.400(o). VA's duty to maximize benefits requires it to assess all of a claimant's service-connected disabilities to determine whether any combination of the disabilities establishes eligibility for special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In Bradley, 22 Vet. App. 280, the United States Court of Appeals for Veterans Claims (Court) held that 38 U.S.C. § 1114(s) permits a TDIU rating based on a single disability to satisfy the statutory requirement of a "total" rating. When a veteran is awarded a TDIU based on a single disability and receives schedular disability ratings for other conditions, SMC based on the statutory housebound criteria may be awarded as long as the same disability is not counted twice, i.e., as a basis for TDIU and as a separate disability rated 60 percent or more disabling. See 75 Fed. Reg. 11,229, 11,230. However, a TDIU cannot be assigned for a single service-connected disability that has already been awarded a total schedular evaluation. In other words, one single service-connected disability cannot be awarded two 100 percent ratings (one schedular and one based on unemployability). After review of the record, the Board finds that TDIU is not warranted prior to June 7, 2011. There is no evidence of record that the Veteran's MDD precluded the Veteran from obtaining or maintaining gainful employment prior to June 2011; he was in job training and worked. There was no indication in the medical records that the Veteran's service-connected lumbar disability, hypertension, or radiculopathy affected his ability to work. However, the Board finds that TDIU is warranted from June 7, 2011 (the date of the VA mental disorders examination) through effective June 2, 2021 (the day before the 100 percent rating for his MDD went into effect). As a threshold matter, during this period, the Veteran's combined rating reached the schedular threshold for TDIU solely based on the 70 percent rating for MDD in effect from that time through June 2, 2021; this does not even consider the additional ratings of 20 precent for lumbar spine disability, 10 percent for hypertension, and 20 percent for left lower extremity radiculopathy. Moreover, the evidence establishes that from June 7, 2011 to June 2, 2021, the Veteran was unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities. As detailed elsewhere in this decision, the Veteran's MDD resulted in significant occupational impairment. In the VA examinations of record, he was noted to be either unemployed or only periodically, briefly, or intermittently employed in various capacities, and even then, he reported problems at work such as with needing additional instructions. The narrative/commentary from several of the VA examiners over the appeal period speaks specifically to the impairment of the depression on the Veteran's ability to secure and maintain employment. Accordingly, the Board finds that TDIU is warranted for this period. Beginning June 3, 2021, the Veteran's current rating of 100 percent for MDD cannot be considered for TDIU. The Veteran's remaining rating of 20 percent for lumbar disability, 10 percent for hypertension, and 10 percent for left lower radiculopathy associated with a lumbar disability does not reach the threshold schedular criteria for a TDIU from June 3, 2021. Simply stated, the evidence does not establish that the Veteran's service-connected disabilities combined were so severe to preclude him from obtaining and maintaining gainful employment prior to June 7, 2011. From June 7, 2011, to June 2, 2021, the evidence does establish such impairment. Beginning June 3, 2021, the Veteran does not meet criteria for TDIU due to the rating for his depression being increased to 100 percent disabling. Accordingly, based on the evidence of record, the Board finds that TDIU is warranted only for the period June 7, 2011, to June 2, 2021, and not at any other time during the appeal period. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). J. Kirby Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.E. Lee 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.