Citation Nr: 21075566 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 18-10 627 DATE: December 20, 2021 ORDER Entitlement to an increased rating of 100 percent for major depressive disorder (MDD) is granted. Entitlement to a finding of total disability based on individual unemployability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. The Veteran's major depressive disorder symptoms are manifested by total occupational and social impairment, suicidal ideation, and a gross inability to form and maintain relationships with others. 2. The Veteran is in receipt of a 100 percent schedular rating for PTSD for the entirety of the appellate period, and so the question of entitlement to TDIU is moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating of 100 percent for major depressive disorder have been met. 38 U.S.C. §§ 1110, 5107; 38C.F.R. §§4.1, 4.3, 4.7, 4.130, Diagnostic Code 9434. 2. The issue of TDIU is moot. 38 U.S.C. § 7104; 38 C.F.R. § 20.101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service with the United States Marine Corps from June 1997 to May 2001. This case comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ). The Veteran testified during a virtual hearing before the undersigned Veterans Law Judge (VLJ) in December 2021. This decision is rendered prior to production of a hearing transcript; given the favorable outcome, the Veteran is not prejudiced by this action. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. 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. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). MDD MDD is rated under 4.130, Diagnostic Code (Code) 9434. 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). A 70 percent rating is provided 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 worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is provided 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. 38 C.F.R. § 4.130, Code 9411. When rating a mental disorder, VA must consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the claimant's capacity for adjustment during periods of remission. VA shall assign a rating based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126(a). When rating the level of disability from a mental disorder, VA will consider the extent of social impairment, but shall not assign a rating solely on the basis of social impairment. 38 C.F.R. § 4.126(b). A Veteran may only qualify for a given disability rating under 38 C.F.R. § 4.130 by demonstrating the presence of the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-118 (Fed. Cir. 2013). In addition to requiring the presence of the enumerated symptoms, 38 C.F.R. § 4.130 also requires that those symptoms have caused the specified level of occupational and social impairment. Id. However, 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, so the determination should not be limited solely to whether a veteran exhibited the symptoms listed in the rating scheme but should also 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, 442-443 (2002); 38 C.F.R. § 4.126(a). A September 2014 treatment note documented that the Veteran was not doing well. He reported that he was now divorced from his wife. He indicated that his sleep was poor. He was oriented to person, place, time, and situation. His mood was anxious and mildly irritable. His affect was congruent, and his behavior was cooperative. He denied any delusions, obsessions, or phobias. He denied any suicidal or homicidal ideation. His judgment and insight were good. The examiner noted that the Veteran's medication decreased the severity of his symptoms over time. However, he still was anxious and depressed. In November 2014, the Veteran was afforded a VA mental disorders examination. He was diagnosed with unspecified depressive disorder. He reported that he was separated from his wife in July 2013 and divorced in July 2014. He had joint custody of his 3 children. He noted that his wife could not live with him anymore because of his irritability, depression, and anxiety. He reported that he would shout, say mean things, and yell at his wife. His reported that he did not do much of anything. He did not read, watch TV, browse the internet, or play videos. He did not engage in any outdoor activities. However, he did have a girlfriend. He noted that she took care of everything from the shopping, cooking, and housework. The Veteran was morose, frustrated, and lethargic. The Veteran regarded himself as being permanently disabled by depression and resigned to a life of existing, but not truly living. He initially presented as being so dysfunctional that the examiner worried his children might not be safe in his care because he reported such severe apathy, lack of motivation, and excessive sleeping (until a recent bout of insomnia). However, when the examiner addressed his concerns the Veteran quickly said he was "not that out of it" and always watched over his children and took good care of them physically, although he acknowledged that "I am not really there for them emotionally, I guess." He was overtly cooperative throughout the examination. He was dressed casually, and his grooming was adequate. He was oriented to person, place, time, and situation. His affect was constricted, and mood was reported as depressed all the time. His thought process was logical, and goal directed. He denied any delusions or hallucinations. He had occasional suicidal thoughts; however, he would not act on them. His memory was intact. His insight was poor, and judgment was fair. The Veteran had symptoms of depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's mental disorder symptoms caused an occupational and social impairment with reduced reliability and productivity. An October 2017 VA treatment note documented that the Veteran was seen for treatment. He reported that his wife told him he was moodier. He indicated that he had been more paranoid and misinterpreting what she told him as criticism. The Veteran was still primarily depressed. He only was able to get 4 to 5 hours of sleep. He still had minimal physical activity and was lacking motivation. An October 2021 private psychological evaluation was submitted in December 2021. The Veteran had symptoms of depressed mood; anxiety; suspiciousness; panic attacks that occurred weekly or less often; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; mild memory loss; flattened effect; impaired abstract thinking; disturbances of motivation and mood; difficulty establishing and maintaining effective work and social relationships; difficulty adapting to stressful circumstances, including work or work like setting; inability to establish and maintain effective relationships; suicidal ideations crisis; and spatial disorientation. The Veteran's symptoms caused a total occupational and social impairment. In December 2021, the Veteran testified that was not able to sleep the night prior to the hearing. He had been nervous about his hearing and snapped at his wife, then felt bad about it. He and his wife stated he had a breakdown that morning, with him crying in the car prior to coming into his representative's office. During the virtual hearing he made no eye contact and stared at the table. He was hesitant when replying. He indicated that he would cry, scream, throw things, and break stuff because of his disability, often things with great sentimental value. The Veteran had panic attacks with a lot of crying and breathing. The Veteran had issues with his mood that was becoming a serious problem. He reported that he had issues with being unstable. The Veteran had issues with rage and anger. He avoided shopping and public places. He did not have an appetite and was losing weight. The Veteran felt that he was not worthy and had weekly suicidal thoughts. He indicated that he did not have any real relationship and did not participate in any activities. He reported that he thought that he might be hallucinating or having delusions. He noted that he never hit his wife, but he just was verbally abusive. He reported that he called the crisis line and "they let him down." Accordingly, the Board finds the overall disability picture more closely approximate the symptoms contemplated by a 100 percent disability rating. The Veteran's MDD symptoms resulted in a total occupational and social impairment, due to such symptoms as: grossly inappropriate behavior, panic attacks, depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The evidence demonstrated that he was very irritable and depressed. Notably, the November 2014 VA examiner worried that the Veteran was so dysfunctional that he was not safe for his children. He reported that he was not emotionally there for his children. During the examination, he reported that he would shout and say mean things to his wife. The Veteran did not do any physical activities. He had severe apathy, lack of motivation, and excessive sleeping (until a recent bout of insomnia). Later in 2017, VA treatment notes documented that he was moodier and more paranoid. In 2021, he testified that he was verbally abusive to his wife. The Veteran was noticeably snappy to his wife and did not make eye contact during the hearing. The Veteran indicated that he would cry, scream, throw things, and break stuff because of his disability. The Veteran had issues with his mood, anger, and rage. The Veteran noted that he was unstable and had weekly thoughts of suicidal ideations. Lastly, the October 2021 psychological evaluation documented that his symptoms caused a total occupational and social impairment. Therefore, an increased schedular rating of 100 percent for the Veteran's service-connected MDD is warranted. The Board notes that while the Veteran has a single service-connected disability rated 100 percent disabling, he does not have additional conditions ratable as 60 percent disabling or greater. Further, the Veteran has been able to perform his activities of daily living independently. TDIU As the Veteran has been granted a schedular 100 percent rating for the entire period on appeal based solely on his MDD, the issue of TDIU is moot and dismissed. The regulations provide for such a benefit only "where the schedular rating is less than total." 38 C.F.R. § 4.16(a). WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Baxter 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.