Citation Nr: 21074475 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 19-26 157A DATE: December 15, 2021 ORDER A rating in excess of 70 percent for unspecified depressive disorder with unspecified anxiety disorder is denied. A total disability rating based on individual unemployability (TDIU) is granted, subject to the law and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran's unspecified depressive disorder with unspecified anxiety disorder, alone, causes total occupational and social impairment. 2. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of her service-connected disabilities is, at least, in relative equipoise. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a rating higher than 70 percent for unspecified depressive disorder with unspecified anxiety disorder. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.126-4.130, Diagnostic Code (DC) 9435. 2. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1990 to April 1992. This case comes before the Board of Veterans' Appeals (Board) on appeal of an April 2017 decision by a Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 70 percent for unspecified depressive disorder with unspecified anxiety disorder. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran's favor. 38 C.F.R. § 4.3. "Staged" ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal, irrespective of whether an initial or established rating. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999) (initial rating); Hart v. Mansfield, 21 Vet. App. 505 (2007) (established rating). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran's unspecified depressive disorder is rated as 70-percent disabling under the General Rating Formula for Mental Disorders (General Formula). 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). This may be 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); inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for total occupational and social impairment. This may be 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. See 38 C.F.R. § 4.130, DC 9435. The list of symptoms in the General Formula is not intended to constitute an exhaustive list but instead provides examples of the type and degree of symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, 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 (Fed. Cir. 2013). Furthermore, when evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. A November 2016 VA mental health outpatient notes that the Veteran is trying to get a VA loan for a home, but has difficulty hold a job. He reported he is irritable, but denied suicidal ideation. In response to his claim, the Veteran underwent a VA examination in January 2017. The Veteran reported that he had been essentially homeless, living with friends and relatives, until about two months prior to the exam when he got his own apartment where he lived alone. The Veteran reported that he had five children but that he only had relationships with two of them. The Veteran reported he had some old friends who he could talk to when depressed and who would do his shopping for him if needed but that he had a hard time meeting new people and being around them. The Veteran reported that he had recently taken some online classes but lost interest and stopped. The Veteran had most recently taken a job buffing floors but quit because he had to work in a small space with others. The examiner diagnosed the Veteran with unspecified depressive disorder and unspecified anxiety disorder. The Veteran endorsed having a depressed mood, anxiety, near continuous panic or depression, chronic sleep impairment, mild memory loss, disturbances of motivation or mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, obsessional rituals which interfere with routine activities, and impaired impulse control. The examiner opined that the Veteran's mental disorder cause him occupational and social impairment with deficiencies in most areas. The examiner noted the Veteran was dressed casually but clean. His mood was within normal limits and no apparent thought disorder. An August 2017 VA treatment record reflects the Veteran's reports of getting out more and feeling less anxious. He reported he has his own home with his girlfriend. He denied suicidal ideation. A March 2019 statement from the Veteran's girlfriend states they have been together for four years and the Veteran has anger and attitude issues. She reports he stays home and avoids people and large crowds. He also struggles with short-term memory and concentration. In December 2019, the Veteran submitted a Disability Benefits Questionnaire (DBQ) completed by Dr. K.G. The examiner noted the Veteran's symptoms included a depressed mood, anxiety, near continuous panic or depression, chronic sleep impairment, suspiciousness, panic attacks, near continuous panic or depression affecting the ability to function independently, chronic sleep impairment, mild memory loss, impaired judgment, disturbances of motivation or mood, difficulty establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, inability to establish and maintain effective relationships, and impaired impulse control. The examiner opined that the Veteran's mental disorder cause him occupational and social impairment with deficiencies in most areas. After consideration of the evidence of record, including that discussed above, the Board finds that the Veteran's unspecified depressive disorder symptoms were productive of occupational and social impairment with deficiencies in most areas such as family relations, judgment, thinking, or mood, consistent with the 70 percent disability rating that is currently in effect. The Veteran's symptoms do not more nearly approximate the criteria for a 100 percent disability rating. Based on the results of the January 2017 VA mental status examination, and the other relevant evidence of record discussed above, the Veteran does not have grossly inappropriate behavior, persistent danger of hurting himself or others, intermittent inability to perform activities of daily living (ADLs) including maintenance of minimal personal hygiene, disorientation to time or place, or memory loss for names of close relatives, own occupation, or own name. He also does not have other symptoms causing this level of total occupational and functional impairment. While there is reported memory impairment, he is not shown to have suffered from an inability to remember his own name, occupation, or the names of close family members. He was not reported to have gross impairment in thought processes or communication. Additionally, there are regular notes that the Veteran denied being suicidal or homicidal and that he did not have auditory or visual hallucinations. Moreover, the above-described evidence, notably the reports of the January 2017 VA examination and December 2019 DBQ, do not document that his symptoms resulted in total occupational and social impairment. Thus, it cannot be said that he then suffered from total occupational and social impairment. The Board has also fully considered the lay statements of record, which are competent insofar as they relate to observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). Notably, however, the lay evidence of record is not competent to provide an expert opinion as to the Veteran's level of functional impairment as a result of his observable unspecified depressive disorder symptoms. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Therefore, it is afforded less probative value than the objective psychiatric medical evidence of record. The preponderance of the evidence is against the assignment of a schedular rating in excess of 70 percent. The appeal of this issue must be denied. 2. Entitlement to a TDIU. The Court has explained that a TDIU claim is derivative, so part and parcel, of a claim for an increased rating for a service-connected disability, if that disability is one of those causing unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this circumstance, the Board must assume jurisdiction over this additional TDIU claim when raised by the claimant or evidence. TDIU is warranted where the evidence of record shows that a veteran is unable to secure or follow a substantially gainful occupation, consistent with her education and occupational experience, as a result of service-connected disability, without regard to advancing age. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Provided, however, that, if there is only one such disability, the disability must be rated at 60 percent or more, and that, 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Here, because of his 70 percent rating for his unspecified depressive disorder disorder, the Veteran has a sufficient rating for this service-connected disability to meet the schedular rating requirements for a TDIU. See 38 C.F.R. § 4.16(a). The Board, therefore, need only determine whether this service-connected disability renders the Veteran unemployable meaning incapable of obtaining or maintaining employment that could be considered substantially gainful versus just marginal in comparison when considering his level of education, prior work experience and training, but not his advancing age and disabilities that are not service connected. 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16, 4.18, 4.19. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; 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," while the noneconomic component requires consideration of a Veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a Veteran's ability to "secure and follow" such employment, noting that attention must be given to: the Veteran's occupational history, education, skill and training; whether the Veteran has the physical ability to perform occupational activities; and whether the Veteran has the mental ability to perform occupational activities. The Board finds that the evidence supports an award of a TDIU. In his September 2016 TDIU application (VA Form 21-8940), the Veteran indicated that he had one year of college education. He noted working various short-term positions as a cook and floor cleaner. Each position was for approximately one month and he indicated he earned only $1,155.00 in the past twelve months. In an updated VA Form 21-8940 submitted in August 2020, the Veteran reported working additional short-term positions. He reported earning only $1,412.00 in the past twelve months. He further stated he last worked in November 2019. He quit his most recent job as a floor buffer after only a few months due to his need to interact with others. A January 2017 VA examiner indicated the Veteran has difficulty adapting to stressful circumstances, including work or work-like settings. The examiner further explained that the Veteran would be unable to establish and maintain effective work relationships because of his depression and anxiety. He would avoid coworkers and supervisors and conflicts would arise to his inadequate job performance. The examiner summarized the Veteran's depressive disorder as causative of occupational and social impairment with deficiencies in most areas. A March 2017 VA medical opinion noted the Veteran has a problem with his anger and working around others. The examiner indicated that if the Veteran tried to work, it would have to be in a situation with very few or no other people around and an understanding supervisor. A March 2019 statement from the Veteran's girlfriend reflects that he has worked briefly here and there since they met. She stated that he has never been able to work longer than a month or so. She reported anger issues and conflicts with co-workers. A statement from a former co-worker indicated that the Veteran did not get along with people very well. The statement further reflects that the Veteran was hard to work with. In December 2019, private psychologist, Dr. K.G., determined that the Veteran cannot sustain gainful employment due to his mental health issues. She stated that competitive work environments require employees to demonstrate cognitive and emotional agility, to be minimally effective with conflict resolution, engage in teamwork, and tolerate various communication styles and personalities. Dr. K.G. concluded, based on an interview and review of the work history, that the Veteran has poor impulse control and significant anxiety that leads to control loss in the workplace, and that his unspecified depressive disorder is severe enough to prevent gainful employment. In January 2020, private vocational consultant, Dr. S.B., determined that the Veteran's mental limitations would prevent prior work as a driver, cook, or floor cleaner. She found that the limitations on concentration, persistence, socially acceptable behavior in the workplace, and stress tolerance prevent completing the demands of work on a sustained basis. His other mental health symptoms are severe enough to prevent performance of any unskilled work on a sustained basis. The final determination with respect to a veteran's entitlement to a TDIU is an adjudicatory, and not a medical, function. In light of the totality of the record, and giving due consideration to the descriptions of the functional effects of the Veteran's service-connected impairments as they relate to his level of education and prior occupational experience, the Board is persuaded that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. A TDIU is therefore granted. In arriving at this conclusion, the Board intimates no opinion, either legal or factual, as to the appropriate effective date of the award. That matter will be addressed by the agency of original jurisdiction when the award is effectuated. Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Baronofsky 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.